Interview Date: Thursday December 14, 2000
Interview Location: Washington, DC
Interviewer: Dan Shields
Collection: Hauser Collection
SHIELDS: Hi, I’m Dan Shields for The Cable Center and we’re here today for an oral history of Jack Cole, of the law firm of Cole, Raywid & Braverman. We’re going to go right to Jack and ask him right off to give us his personal background, where you started, where you were born and when before we get into the nitty gritty of the communications law. Jack?
COLE: Dan, I was born in Washington, D.C. in 1930, just when the Depression was getting started good. I was raised in Washington, went to public schools there. My father was from Columbus, Georgia and I spent a lot of time in the South off an on with my grandmother down there. My mother had been from Washington and her father and grandfather were both natives of Washington, which made our family somewhat rare at that time. I went into the military, the Air Force, after high school. I served a year in the military. I came out and I went to Auburn University where I graduated with an engineering degree and then went directly to the George Washington University Law School, graduating in 1956. Upon graduation, there was a bit of a recession during the Eisenhower administration and jobs were very, very short and I was lucky enough to land a job on the staff of the Federal Communications Commission, the broadcast bureau, where I worked for about 15 months. Those 15 months were working principally with applications for television broadcast stations in the United States. At the time, I happened to meet two gentlemen who had recently formed a law firm in Washington. They had left one law firm and had established a communications law firm. It was called Smith & Pepper. It was Stratford Smith and Vincent Pepper and they decided that they needed a third party flunky to help them out in their practice and I went with that firm in December of 1957 and through happenstance and good fortune, just plain luck, I ended up working exclusively for Strat Smith, who was the first lawyer in Washington to do any work for the cable television industry and I learned a lot from Strat. I was with his law firm for eight years, nine years almost, except for one year that I served on the staff of the U.S. House of Representatives working under the patronage of a Georgia congressman, Jack Flint, who was then on the communications sub-committee, so the firm arranged for me to take a leave of absence and to get some legislative experience on the Hill. That was in 1960 and ’61, just at the beginning of the Kennedy administration. I came back to Smith & Pepper as a partner, the third partner in the firm, and doing exclusively cable television work. In early 1966, another associate at Smith & Pepper, Roger Zostra, and I left Smith & Pepper to form a new law firm in Washington concentrating on cable television matters. The day we opened our door was March the 16th, 1966, and we numbered among our clients at that time so people that were not well known then but became well known in the cable television industry and were great contributors to the advancement of cable. Irving Kahn, Hub Schlafly at TelePrompTer Corporation, Gene and Richard Schneider, who were going through an evolution of cable operations beginning with an operation in Casper and moving to Tulsa, Bob Rosencrans and Ken Gunter at UA Columbia. We were a cable television oriented firm. Leonard Tow was at TelePrompTer at that time; there were many personalities. Probably one of the most unique stories or significant stories about that: I had been working for Strat Smith for two days and it was Christmas Eve of 1957 and I was a bachelor then and so I didn’t have a family and they felt they could work me long hours and I was anxious to work long hours then, so I was alone in the office Christmas Eve about 8:00 or so when the telephone rang and it was a gentleman who identified himself as Bill Daniels and he was in desperate straits at the time. He had just opened a very nice Christmas present from a friend of his and compatriot in their adventures around the U.S. and around the world, it was a Christmas present from Marty Malarkey and Bill had realized that he had failed to send Marty a Christmas present and he didn’t know who I was and I sure didn’t know who he was, but he told me that he would be forever indebted if I could find and deliver to Marty’s house in Georgetown a particular brand of champagne that both of them were very fond of. I said I would do my best; it was snowing that evening and I found the champagne at a very well known liquor store in Washington that Dan, you know about too, Penn Liquors down on Pennsylvania Avenue and I took the crate of champagne over to Marty’s house. He thought I was the delivery boy and gave me a dollar tip and I was pleased to get the dollar and Bill and I became very fast friends from that day forward. So, I was a very fortunate young man and it was through nothing but good luck landing where I did and landing at the beginning of an industry that had such tremendous potential. I don’t think I, or really anyone else, knew at that time the true potential that it did have to become the great industry that it matured into.
SHIELDS: Well, I’m sure it was more than just luck in your case, but let me ask you a question about you had quite a roster of clients to start out with your first day. Did all of them come from Smith & Pepper?
COLE: A number of them – virtually all of them had come from Smith & Pepper, but for the most part they were clients that I had nurtured along while at Smith & Pepper. For example, Irving Kahn came in with a small problem involving the acquisition of a cable system in Liberal, Kansas that had a microwave license and they had failed to get any FCC approval of the acquisition of that microwave operation. So it was a very small problem and poor Irving they sent down to the end of the hall to see me, the low man on the totem pole, to help him out of that predicament. So, I could say to young lawyers, if I have learned anything in the practice of law, it is to be nice and to do good work for whomever comes before you because you never know what’s going to happen in the years to come. Many of these people that started out small and that were clients when they were going to the low man on the totem pole in the law firm became industry titans. They were the people that made this industry work. I hope that I have not left out any names of that very first practice when we opened our own law firm because there were many people that came along and there were some that had come and gone.
SHIELDS: Are you naming the ones that went on to become, as you say, titans in the industry?
COLE: I have great affection for, as you can appreciate, those particular people, the Gene Schneiders of the world.
SHIELDS: As they grew in their stature and you in yours, and you got into more important cases, did you clients always, were they willing to support the fights for the industry through the appeals process and…
COLE: Well, even when I was at Smith & Pepper and certainly when we had established our own law firm, these were entrepreneurial types, the government regulation was oppressive, it limited the growth of their business, it limited the productivity of their business and they were willing sometimes alone, but most of the time in unison, to fight against oppressive regulation. The parties aligned against the growth of the cable industry were extremely powerful both in terms of revenues and in terms of political impact, political clout. First and foremost was the broadcast industry and the broadcasters had a good thing going. They literally had the golden egg and they did not want anything to disturb the status quo and cable represented a threat to that status quo. The motion picture industry was aligned against cable development on really two separate grounds. First, the growth of cable in communities throughout the country had a detrimental impact on the number of people who went to motion picture theaters. They could stay home and watch television if they had a variety of television. Also, the owners of the films themselves, the producers, were seriously concerned about these films being distributed without royalty payments under the copyright laws to them, and the motion picture people and the broadcasters represented a politically powerful group of opponents in opposition and they had great influence in Washington and were able to maintain regulations, get the government to maintain regulations that made no sense whatsoever.
SHIELDS: Given the strength of your opponents, a formidable strength politically, financially, et cetera, what were the strengths of the cable industry that gave us the ability to prevail, other than your own acumen and ability as an attorney?
COLE: To be perfectly honest, it wasn’t so much… I don’t mean to be modest about this… it was the growing significance of cable, of cable bringing a wider selection or variety of television to these outlying communities. As my friend Bill Daniels was always so fond of saying, “No one likes us except Main Street and Wall Street.” There is always an increase in political power when you increase numbers. For every viewer or more realistically, every 10,000 viewers that were added to cable operations, it became more palatable in terms of political assessment. I lot of things happened along the way, there were a lot of small advancements, but small advancements is the way you make inroads, giant inroads, and cable had a very tough time for many of these years because the FCC was determined to keep it in its place.
SHIELDS: That’s right. As an example of that, one of your earliest cases was the Carter Mountain decision. Could you brief that one for us?
COLE: Well, Carter Mountain was a famous FCC proceeding involving, it was Carter Mountain Transmission Company that was bringing television signals from the Denver area into Lander and Worland, Wyoming, a relatively small community, and there was a small station, a television broadcast station in Riverton, and it was the only television station in Riverton and it was a family owned station and we used to refer to them as Ma and Pa Ernst. I believe it was Mildred Ernst and they were one of only two or three television stations in the state so you can imagine the amount of political clout they had with their senator, both of their senators, and they did not, understandably, want anything that would impair the status quo. Bringing in any additional television would have an adverse effect on their revenues and they were very successful in delaying for many years and then not ultimately blocking, but having microwave importation of the Denver signals conditioned on a non-duplication premise. You couldn’t bring in any outside signals into the area that would duplicate any of the signals, any of the programming, broadcast by the local station thirty days before or thirty days after the broadcast. So, it sounded to some people who were initiated like a fairly reasonable condition, but as a practical matter, it made it impossible. There were so many holes in the programming imported from Denver, and some of those wholes could be literally created by the local station to antagonize the cable subscribers. It was a case that we tried at the FCC and believe it or not, we got this semi-approval with the non-duplication provision. By the way, that was the first mention of non-duplication in the history of cable regulation. That was sometime back in the early ’60s, I think ’63.
SHIELDS: Were they premising it on a regulation of the commission or on a copyright basis?
COLE: No, it was strictly on a regulation by the FCC. It wasn’t even an administrative regulation at the time; it was just an ad hoc provision applied to protect the commercial interests of this particular broadcast station in Wyoming. That was the genesis, though, of the non-duplication rules that ultimately became a regulation of the FCC and which additional, or future, court cases took up. The television station in the Carter Mountain case appealed through the D.C. circuit, the Federal Court of Appeals, with jurisdiction over FCC licensing cases and the court essentially condoned a non-duplication provision, so we won the case and yet we lost the case and that was like so many FCC cases were at that time. You hardly ever got a clear cut victory; sometimes you could avoid a clear cut defeat.
SHIELDS: Speaking of copyright, then the Fortnightly case was the one that brought copyright to the fore.
COLE: Well, the Fortnightly case was a case that in my estimation is the most significant legal proceeding that ever impacted the cable television industry. That was a case brought by the motion picture producers against some cable television systems in West Virginia. It was claiming that cable reception of television programming that carried copyrighted motion pictures created an infringement of the copyright and that the copyright owner was entitled to statutory damages. Those statutory damages, because there had been literally thousands and thousands of programs carried over cable television systems, those statutory damages amounted to astronomical sums of money. That case started out in a U.S. district court in the southern district of New York federal court, trial court. During that case, which was tried while I was at Smith & Pepper, I was little more than a briefcase carrier for Strat Smith; we lost that case in the district court. Judge Hurlons’ decision was a sound victory for the motion picture interests and the case was a total loss. We appealed that case to the U.S. Court of Appeals for the Second Circuit. We lost that case rather quickly, three to zip, three-nothing. And the copyright case had been a hotly contested piece of litigation because it was so critically important to the cable… it literally meant the survival of the cable industry. When that case was lost in the Second Circuit, there began a great ground swell among certain cable operators that the industry was wasting their money supporting the defense of that litigation and that we just ought to cave in and try to reach some kind of settlement with the copyright holders. There was really a great deal of dissension and some of it got quite bitter. Fred Ford was the chairman – not the chairman, he was the president of NCTA at that time and he was one of those who did also believe that the expenditure of additional funds in financing that litigation was money down the drain. Strat Smith, bless his heart, successfully talked the industry into taking the last possible appellate step and that was a petition for cert to the Supreme Court.
SHIELDS: And the Supreme Court granted cert?
COLE: The Supreme Court, much to everyone’s surprise, granted cert and the case was heard in early 1968 and I never will forget the day because it was at the tail end of June in 1968, right as the court was getting ready to adjourn, and there only a very few decisions left to hand down and one of them was the Fortnightly decision and the cable industry won that case six to two with one judge recusing himself, one justice recusing himself. And I will say, to this day, that was cable’s grandest legal victory. I had nothing to do with it; I was very much a spectator. I had left Strat’s firm in ’66 and the Supreme Court victory came in ’68, but without the victory in Fortnightly, no one can say what turns this industry may have taken but I suggest strongly that one of the turns would have been for the motion picture theater people and the people that owned the copyrights to the programming, they would have been the victors and probably in the driver’s seat and would have probably controlled the future directions of cable.
SHIELDS: I’m glad we won!
COLE: It was a significant victory.
SHIELDS: You know, we did win the Fortnightly case finally in the Supreme Court. What theory did Strat use to prevail when the other two courts turned him down?
COLE: Well, Strat argued the same theory in the three courts, the two losing courts and ultimately in the Supreme Court and that was the so called master antenna theory. The master antenna theory was little more than the concept that a cable television antenna on a hill outside of town, with wires and amplifiers bringing the signal to the subscriber’s home, was in a technical and copyright context no different from the antenna, rabbit ear antenna, on the back of your television set. It was a simultaneous reception of a television broadcast signal that had been disseminated with the intent of public reception and whether the public received that simultaneous transmission by simple rabbit ear antenna or a far more sophisticated device, like the cable television antenna and operation, was not significantly different.
SHIELDS: Makes sense to me.
COLE: It made great sense and one thing that I learned from that and that I took away from that case and lived with for a long time to this day is persistence. The theory was tried on Judge Hurlons it was tried on three judges in the Second Circuit and it did not appeal in any sense to any of them. In fact, the chief judge of the Second Circuit, Judge Friendly, wrote a very, very critical decision of the master antenna concept, but six justices of the U.S. Supreme Court bought it, so it must be a pretty good theory.
SHIELDS: Well, the Supreme Court is always right, we know that.
COLE: We know that as of yesterday.
SHIELDS: That’s right. Well, one of the areas, not copyright maybe, but that you were very highly involved in through the years was must carry and that’s an issue that’s always dogged the cable industry and you were very paramount in discussing it and bringing those cases to the court and to fruition.
COLE: Well, once the cable industry survived the copyright scare, and it was a real scare, no one was more shocked than the Federal Communications Commission because the agency had thought that they didn’t have to cope with this problem any more. They didn’t have to suppress, by regulation, the growth of the cable industry because that was all taken care of by the copyright decision. So they were totally shocked when the whole thing was dumped back into their lap and they started a series of regulations. The restrictions on the importation of distant signals, which meant distant broadcast stations, and non-duplication protection and the agency devised the most complicated set of regulations that man has ever seen, I think. In fact, they were so complicated that when you went to a court, even to challenge them, you could never get to your legal theory of the case in the time allotted for oral argument because the court, understandably, could not comprehend the facts. They could not understand these complex rules. I would like to think that my failure to explain adequately to a court so it could understand these rules was not something that was just akin to me. It happened to everybody. So courts generally threw up their arms. They just threw up their arms and said, “The FCC knows best. This is a highly technical subject matter; we should not get involved in it. The agency is acting in the public interest and we ought to accept their public interest judgments.” One of the regulations that had been adopted was the so called must carry rule and I had a client in the community of Quincy, Washington, and Quincy was almost half way between Seattle and Spokane and it had twelve channels on the cable system. Quincy was compelled to carry the three networks from Seattle and it was compelled to carry the three networks from Spokane.
SHIELDS: What was the broadcasters’ theory in the must carry?
COLE: The broadcasters’ theory in the must carry was that no station, no licensed station, no matter how unpopular, should be omitted from a cable television system and the theory had a lot more behind it then simply that which was clear to everyone. The theory was that, from the broadcasters’ angle, if we could get a whole bunch of must carry signals on there, particularly duplicated must carry signals, because of the limited channel capacity of cable operators, while you might be carrying eight or nine television broadcast stations, you might only be carrying really four or five because some would duplicate the others so you would reduce the selection of the television viewers programming and make the cable offerings less attractive. In this case in Quincy, they wanted to carry some additional programming but they did not have the channel capacity to do so because they were carrying six signals that duplicated each other. We went to the commission and protested the rules on First Amendment grounds that the commission had regulations that were restricting the amount of diverse programming that could have been available on that system and that they were substituting their judgment for the judgment of the cable operator and that was a violation of the First Amendment. We lost the case at the commission. We did get one dissent. Then we went to the U.S. Court of Appeals for the D.C. circuit and in Quincy One we lost it but they remanded the case back to the FCC for a further evidentiary record. We got that evidentiary record; we went back to the U.S. Court of Appeals – this was a long process, over about a two year period – and the commission, in a unanimous decision – not the commission, the U.S. Court of Appeals in a unanimous three judge decision, written by Skelly Wright, who was then the chief judge of the circuit, declared the must carry rules unconstitutional as an abridgement of the free speech protection of the First Amendment.
SHIELDS: Your theory.
COLE: The panel in that case was very interesting because Judge Skelly Wright was a noted liberal. Judge Robert Bork, who came to later fame, even then he was a noted conservative and there was a young woman judge on that panel, Ruth Bader Ginsburg, who went on to greater fame in the U.S. Supreme Court. So it was very interesting panel and the most interesting aspect of it was that there was unanimity between these three judges.
SHIELDS: Yes. That was Quincy Two?
COLE: That was Quincy Two, in 1975.
SHIELDS: You did have another must carry in the Turner case?
COLE: No, after Quincy the commission at the prodding of the Congress went back to the drawing board and devised a new set of draconian must carry rules and they said that these rules eliminated the problems found by the Court of Appeals with the prior set of rules. So my client, Century Communications, Leonard Tow, authorized me to take that case to the D.C. circuit and we got a three judge decision in that case, a unanimous decision, striking down that second set of must carry rules as unconstitutional. Then, Dan, came the Turner case. After those rules were struck down, the broadcast industry, being as persistent as humanly possible, persuaded the Congress to enact a new cable television act, among which were a wholly new set of must carry rules. The difference between those must carry rules and the other must carry rules was really nothing more than a congressional determination as opposed to an FCC or administrative determination that such rules were in the public interest and in that act created legislation passed by Congress. There was a unique provision that an appeal of those rules would not go back to the D.C. circuit. It would go to a three judge federal court especially convened and any appeal from that had to go directly to the U.S. Supreme Court. So, it bypassed the D.C. circuit. We tested those rules in the court system. We lost two to one in the specially convened U.S. District Court.
SHIELDS: Again on First Amendment grounds?
COLE: Again on First Amendment grounds. That was the principle argument and then the case went to the Supreme Court and the so called Turner case, and I believe Turner came out in either 1994 or ’95, and the cable industry lost that case in a five to four decision, five judges holding that the rules were constitutional, four justices that they were not, that they were unconstitutional. And that was the end of my must carry ride. That was without question, because of my early start with must carry, and some degree of success, it became something special to me and I can tell you that when that decision came out of the U.S. Supreme Court it was a mortal blow. I really suffered with that loss. It was a loss that made it very difficult to sleep for a long time.
SHIELDS: Of course there was one thing that saved the cable industry with respect to programming possibilities and you were involved in the beginnings of that and we’re talking about, of course…
COLE: Well, satellite distribution was the most significant technical advancement and it did have a regulatory legal context, but it was the dividing line between two industries. I always refer to it with the significance of AD/BC. The industry changed overnight when in 1975, September 30th, as a matter of fact, of ’75, the industry first used the satellite to bring programming directly to the cable subscriber and that first initial program was the “Thrilla from Manila” and I had been involved in obtaining, from the FCC, the license authorization to construct a receive only earth station in Vero Beach, Florida.
SHIELDS: You needed a license just for a receiving dish?
COLE: You needed a license just for a receiving dish at that time and as absurd as that sounds today it was necessary then at the insistence of the FCC because the commission really was a little bit concerned that what would happen if the proliferation of dishes all over the country might be… the impact that that might have on its whole regulatory program. The other concern that the commission had may have been a little bit more legitimate and that were technical interference concerns, frequency interference, electrical interference concerns. Of course that ultimately proved to have no basis in fact whatsoever and some people very prominent in the cable industry were instrumental in persuading the commission of that fact and one of them was my good friend, Hub Schlafly, who had been with TelePrompTer in the early days and was one of the real promoters of satellite distribution of programming directly to cable systems and what that did was it opened up… To that point the industry was primarily dependent upon broadcast television signals for its offering to the public. Now there were other channels; there were some movie channels, bicycled movies, there were primitive weather channels, there were a few local origination channels of the most primitive variety, but from that day forward it spawned a whole new industry that people to that date, the entrepreneurs in the cable industry, were mostly of a technical bent and they were business entrepreneurs, but they were technicians. They wore overalls, they climbed poles. From that day forward their overalls and their volt meters were replaced with casting couches and the movie moguls came in and life changed overnight. The satellite made possible this huge variety of programming that we have now, some of which is very good and some of which you wonder how it gets on there at all. But that broke the impasse and that changed the face of the industry and enabled cable to break into the bigger markets, to the big cities. It really gave the operators something to offer that the viewer could not otherwise receive and that fact alone, it really made it a brand new business. The industry today is the result of that breakthrough in 1975. Interestingly, about that first reception and in addition to the reception in Vero and Ft. Pierce, Florida, the cable system in Jackson, Mississippi also carried “The Thrilla from Manila”.
SHIELDS: That was a…?
COLE: That was an ATC system at the time.
SHIELDS: I mean the program was a boxing…?
COLE: “The Thrilla from Manila” was the very famous fight that went fourteen rounds. It was the rubber match, the last of the three fights between Smokin’ Joe Frazier and Mohammed Ali. Each of them had won one fight and “The Thrilla from Manila”, the promoter was the same fellow that you see today, I think his name is King with the big hairdo. He was the promoter of that fight. This was of tremendous technical breakthrough. The fight came from halfway around the world, almost exactly halfway around the world. I can remember I went down on the Time Life plane and Jerry Levin, who at the time was the head of HBO and HBO was a very struggling part of the Time Life empire. Jerry of course has gone on to bigger and better things, bless his heart, but that Jerry got the Time Life plane and they came by Washington and they picked me and one of my partners, Bob James, up and we went down to Vero to see this fight. I can remember going out to the site of this enormous 10-meter dish that had been built specially to receive this one program and I can remember Bob Rosencrans and Ken Gunter, who at the time were the two principles in UA Columbia, all of us wondering whether this damn thing was going to work. I mean, what could go wrong between Vero Beach, Florida and Manila in the Philippines, and sure enough when that switch was pulled, here was the fight and it was like we were at ringside and the picture was crystal clear. I don’t claim to be one of the ones that really saw what this was going to do for the cable industry, but there were people there, including Jerry Levin and Bob Rosencrans, who literally knew that if we use this correctly we’re going to create an entirely new industry. It’s going to be an industry that is going to reach a majority of the people in the United States rather than being what it was at the time for the most part, a rural service that was only operating at capacity in areas that were underserved by television broadcast stations.
SHIELDS: And the future came right to us, didn’t it?
COLE: The future came to us.
SHIELDS: And Jack Cole was there.
COLE: The future came to us and I’m sure there’s a lot more to come. I’m sure that there are promises out there that have been a little slow in developing but that I have confidence will continue and I don’t think we have seen, by a long shot, the end of successes in the cable industry.
SHIELDS: Well, Jack, it seems from the discussion, we’ve gone through the various cases and your representation of your clients, that you have a philosophy of government regulation that comes through pretty clear, but maybe you’d like to expound on it and explain your philosophy and why you believe this where it’s appropriate and where it isn’t.
COLE: Well, as, Dan, you might have detected, I have never been a great admirer of government regulation. For the most part, and I ought to backtrack a second and say, Douglas MacArthur said that old soldiers never die, they just fade away, and in many respects I feel like an old soldier that has been in the trenches fighting this oppressive federal regulation over the years, making some progress, having a great number of defeats, but in the long run, through circumstances and other things, ultimately coming out okay. But I have always thought and even think more so today, after some forty years in the practice, that the FCC, that the regulatory battles before the commission can all be reduced to a very simple formula. It is always the “ins”, the people that are on top, the people that have the frequencies, the people that have the most valuable frequencies, trying to preserve their advantages over those who would like to have such frequencies, or such operations, or such signals, or such favorable regulations. The commission is really a funny animal, and I go back to when I went to work for the commission in 1956 and the chairman of the commission then was one George McConaughey, who most of you have never heard of, but George McConaughey had been a public utility commissioner or chairman in the state of Ohio and was a particular friend of AT&T, and at the time it was a totally different AT&T. AT&T had a monopoly not only over long distance, but throughout the nation on local telephone service and George was a particular friend to AT&T and AT&T was very comfortable with George in the chairman’s position and nobody else cared much about that because AT&T then had almost no competition. They had General Telephone, they had Midwest Telephone, but these were small struggling operations, small in comparison to AT&T, and he had very little effect, or very little influence over the broadcast industry. At the time, the FCC was the regulator of AT&T and it was the regulator of the broadcast industry and everything else was almost incidental. Everything else was private radio, taxi cabs, and things like that and it just went rocking along with very little influence, or very little impact on the larger picture. The broadcasters were extremely powerful then. They were at the height of their power because they had the capacity and the ability to control public opinion, so every senator in the country, most representatives, every governor, was keenly aware of the position of his local broadcaster or broadcasters, and remember, if I can take pride in anything that the cable industry has accomplished, it is when I used to watch my television set in the mid-50s, we had three signals or four signals – a very poor educational television signal that had almost no interesting programming. Today we have almost an unlimited number of signals we can have access to, different opinions. Nobody, despite what Rush Limbaugh may say about the media, nobody has a monopoly over the media now. It’s been a healthy development and I think it will only become more healthy, but even today it’s always the “ins” versus the “outs”. It’s the guys that are there and that are prospering that want to suppress those – and I may be speaking against the interests of some of my cable operator clients, because cable has come a long way. In the early days, cable had no political influence whatsoever.
SHIELDS: That’s true. The FCC was, the status quo was what they were defending, no question about it.
COLE: Their function in life was to protect the status quo, was to maintain the status quo to the extent possible and one phrase really would characterize their duties and that was “don’t rock the boat”. Everything was going as it should go and let’s keep change to a minimum and I think in many respects some of that philosophy still prevails. For example, the telephone industry is, when I started out in the business, it was as I said, AT&T. Today it’s an endless variety of differing interests and in some respects that’s healthy and probably in other respects you could argue that the consumer had not made as much progress as one would have hoped he made. But the commission, no matter who the chairman is, and the chairman at the commission wields a totally disproportionate amount of power because the chairman has control over the staff, the other four commissioners are virtually without staff. They have their own personal staff of three to five people, but the bulk of the agency, the hundreds of employees are responsive, and they do respond to the wishes of their chairman. So a commission is always looked at in the context of its chairman, like an administration, a national administration, is looked at in the context of its president.
SHIELDS: Who was the most colorful chairman in all the years, from McConaughey up to the present, would you bring back…?
COLE: I would think that Bob Lee was certainly one of the more congenial and one of the best conversationalists and one of the guys who was gregarious and he was never chairman. I would think that Dick Wiley was one of the more prominent chairmen in my tenure in the profession. I think Charlie Ferris was the chairman that did more to move along or relax the restrictions on cable than any other chairman, and remember, Charlie was only there for Jimmy Carter’s four years. In fact, Charlie didn’t come in until about… Charlie was only there about three and a half, four years and he did as much as he could with the restraints that were on him to relax the restrictions on the development of cable as did anyone.
SHIELDS: Jack, as we wind down this interview, what was your single greatest disappointment through your career in Washington?
COLE: Well, undoubtedly, the greatest adverse impact on me was, and I did not argue the must carry case in the Supreme Court, the Turner case, I had a client in the case and I participated in all of the briefing but the loss of that case hit me very hard. Not in the pocketbook, it had an emotional impact on me and I don’t think I’ve recovered from it to this day because I not only think that I was right in the case, I know that I was and four justices of the Supreme Court…
SHIELDS: Agreed with you.
COLE: …agreed with us and so it was a five/four decision. It was a very politicized decision and the broadcast industry prevailed.
SHIELDS: Again, status quo.
COLE: The status quo. But no case had an impact… I’ve lost a lot of cases over the years and I’ve felt very badly with each loss, but some of the losses I certainly had anticipated long in advance. I was fool enough to think we were going to win the Turner case.
SHIELDS: Well, you may have if someone else had argued before the Supreme Court.
COLE: Well, interestingly enough, Justice Ginsburg, who I had argued the Quincy case before, and who found those must carry rules unconstitutional was in the minority, she dissented in the Turner case, she was on the Supreme Court. Probably, I thought, that we were going to get for sure Justice Kennedy and/or Justice Breyer and I was wrong on both counts.
SHIELDS: To go out on a high note, what was your greatest victory? What pleases you the most through the years?
COLE: Well, I think my greatest victory is not a particular case. It is the friendships I have made in the cable world, many people who are still prominent, some of whom have passed on, and I think that I would have to add to that that we started a law firm in 1966 and I was very fortunate in the people that I was associated with in the practice of law and we started out as two lawyers and we’re about 65 lawyers today, and I take great pride in the success of those other lawyers. I’m about at the tail end of my practice in many ways. I’ll be 71 in a couple of weeks. It’s been a great ride; I’ve been a very, very fortunate guy in many, many respects, but probably mostly in the respect with the people that I have been associated with, both within my own firm and in this cable industry.
SHIELDS: Well, Jack, you’ve been fortunate with the people you’ve been with and the cable industry has been very fortunate to have you representing it through all these years and we thank you very much. This has been the oral history interview of Jack Cole on December 14, 2000 for and in the name of The Cable Center. Thank you.
COLE: Thank you.a