Is the flamboyant Ted Turner qualified to run CBS Inc.?
Is corporate raider Carl Icahn fit to run Trans World Airlines Inc.?
Should government regulators decide either of these questions?
Both CBS and TWA have turned to Washington for help in waging their antitakeover defenses, charging that in each case, a victory by their adversaries would run counter to the public interest.
Both figure to be disappointed, barring some sharp change in direction.
This week, the Department of Transportation rejected TWA's appeal for an investigation of Icahn's qualifications to run a major airline. TWA had charged that Icahn, a New York City financier, was "unfit to be entrusted" with such a responsibility, but the DOT didn't see it that way.
"TWA has not provided a compelling justification for a DOT investigation . . . . " DOT said on Monday.
CBS, in a petition to the Federal Communications Commission, has tried the same tack, charging that the Turner Broadcasting System Inc. was not financially qualified to take over one of the three major networks. CBS asked for a special evidentiary hearing to dig into Turner's qualifications.
At this point, however, the FCC has scheduled only a one-day hearing into Turner's bid -- nothing close to the weeks of testimony and cross examination CBS is looking for.
To some CBS supporters in Congress, it appears that just as the waves from the current storm of takeovers begin to pound on Washington's shores, federal regulators are opening the dikes and walking away.
This week, Sen. Thomas F. Eagleton (D-Mo.) and five of his colleagues urged FCC Chairman Mark Fowler to hold a "full hearing" into Turner's "plans, finances and capabilities to operate CBS . . . in the public interest."
Noting the thick pile of petitions from civil rights, labor, religious and public interest groups opposed to the takeover, the senators said, "the vital national interest in a proposed network transfer is evident to all."
There are a couple of principles that stand out in the tangled thicket these takeover battles are creating. One is that regulators ought to be very cautious about taking sides in a takeover war and careful not to let their regulatory procedures be used to help one side or another.
That was the transportation department's rationale when it concluded this week that it had no desire to be "drawn into takeover" attempts and saw no reason to "substitute unnecessary government regulation for the competitive pressures of the marketplace."
The FCC, under Chairman Fowler, has been moving steadily toward that same marketplace reliance on the broadcast audience and the courts to police the industry.
Fowler's critics believe this trend is proceeding too far, too fast.
"We start from the premise . . . . that broadcasting is not like any other business. This is after all, a federal license granting a unique opportunity to enter into a home uninvited and to sit astride the most powerful force to shape public opinion entrusted to man," says Andrew Schwartzman, executive director of Media Access Project, a public interest group.
CBS and its allies contend to the FCC that Turner's TBS is financially unqualified; that his takeover would leave CBS deeply in the red and more interested in "debt coverage" than "news coverage" as some critics said, and that a merger of Turner's Cable News Network with CBS would reduce diversity in broadcasting. Those are the issues on the docket.
The underground campaign against Turner is that he would abuse control of CBS to promote some personal cause or behave in an irresponsible way. The unstated issue is, is Turner's character equal to that of CBS Chairman Thomas H. Wyman and the other executives who run the network?
Wyman touched on the issue initially, charging that Turner "lacked the conscience" to run a major network. It came up again, obliquely, when TV station executive Joe Carriere, speaking for CBS affiliates, said a Turner acquisition would risk serious damage to CBS's "well-deserved reputation for public service."
But the CBS petition to the FCC opposing Turner's move does not attack his personal integrity.
"Nobody has made a [character] case against Ted Turner other than he's Peck's Bad Boy and doesn't have the same kind of table manners that William Paley has," said Schwartzman. "But there's nothing wrong with that."
The character issue shouldn't be raised unless there is a substantial and material question presented to the FCC by people willing to testify under oath and subject themselves to cross examination, said Schwartzman.
The FCC should not let itself be drawn into a debate about the comparative strength of Turner's character and that of the current CBS management. And under Fowler, there's no chance that it will.
There is a far tougher question of whether the FCC should concern itself with character at all. In its march to deregulate, the FCC is willing to overlook questions of ethics and taste as long as a broadcaster (or license applicant) doesn't violate technical and financial broadcasting rules. As the broadcasting market becomes increasingly competitive, the argument grows stronger for giving broadcasters the same First Amendment rights of free speech that the print press enjoys.
But it is also true, as Schwartzman says, that broadcasting is, and remains, different and special -- and that means that the FCC shouldn't be deaf to the character issue.