context->filename = 'n:\utility\503800267\5006314258\5006314258.pdf'
*Pages 1--510 from n:\utility\503800267\5006314258\5006314258.pdf*
Citation 65 FR 4211- 01
2000 WL 57806 (F. R.) (Cite as: 65 FR 4211)
FOR EDUCATIONAL USE ONLY c
Search Result Rank( R) 1 of 25
Page
Databas'
PROPOSED RULES
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part, 73 -- v
[MM Docket No.
Public Interest Obligations
Wednesday,
99- 360 FCC 99- 3901 I
of Television Broadcast Licensees
January 26, 2000
"4211 AGENCY: Federal Communications Commission.
ACTION: Notice of Proposed Rulemaking.
SUMMARY : This document solicits comments on how broadcasters can best serve thf public interest as they transition to digital transmission technology.
The document is guided by several proposals the Commission has received and other
recommendations that have been made in recent years.
DATES: Comments are due on or before March 27, 2000; before April 25, 2000. reply comments are due on o
(1.
ADDRESSES: Federal Communications Commission, 445 12th Street, Room TW- A306, SW, Washington, DC 20554.
FOR FURTHER INFORMATION CONTACT: Eric Bash, Policy and Rules Division, Mass Media Bureau (202) 418- 2130, TTY (202) 418- 1169.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Inquiry (" NOI"), FCC 99- 390, adopted December 15, 1999;
released December 20, 1999. The full text of the Commission's NO1 is available for inspection and
copying during normal business hours in the FCC Dockets Branch (Room TW- A306), 445 12 St. SW, Washington, DC.
The complete text of this NO1 may also be purchased from the Commission's copy contractor, International Transcription
Services (202) 857- 3800, 1231 20th St., NW, Washington, DC 20036.
Synopsis of Notice of Inquiry
I. Introduction
1. Television is the primary source of news and information to Americans, and provides hours of entertainment every week.
In particular, children spend far more time watching television that they spend with any other type of media.
Those who broadcast television programming thus have a significant impact on society.
airwaves, Given the impact of their programming and their use of the public broadcasters have a special role in serving the public.
*L Over Copr. (C) West 2000 No Claim to Ori$ b.& w
1
FOR EDUCATIONAL USE ONLY Page 2
65 FR 4211- 01 (Cite as: 65 FR 4211, *4211)
seventy years, broadcasters have been required by statute to serve the "public interest, convenience, and necessity." Congress has charged the Federal
Communications Commission with the responsibility of implementing and enforcing this public interest requirement. Indeed, this is the "touchstone" of the
Commission's statutory duty in licensing the public airwaves. Under the Communications Act of 1934, the Commission may issue, renew, or approve the
transfer of a broadcast license only upon first finding that doing so will serve the public interest.
2. There has been considerable debate over the years about how the Commission should carry out this statutory mandate. Currently, broadcasters must comply
with a number of affirmative public interest programming and service obligations. For example, broadcast licensees must provide coverage of issues
facing their communities and place lists of programming used in providing significant treatment of such issues in their public inspection files.
Broadcasters must also comply with statutory political broadcasting requirements regarding equal opportunities, charges for political advertising, and reasonable
access for federal candidates. In addition, television broadcasters must provide children's educational and informational programming under the
Children's Television Act of 1990. In terms of programming obligations, broadcasters are also prohibited from airing programming that is obscene, and
restricted from airing programming that is "indecent" during certain times of the day. Similarly, broadcasters also have obligations regarding closed
captioning, equal employment opportunity, sponsorship identification, and advertisements during children's programming.
3. The discussion of television broadcasters' public interest obligations has been renewed by their transition from analog to digital television (DTV)
technology. This is due in part to the new opportunities DTV provides. DTV holds the promise of reinventing free, over- the- air television by offering
broadcasters new and valuable business opportunities and providing consumers new and valuable services. DTV broadcasters will have the technical capability and
regulatory flexibility to air high definition TV (HDTV) programming with state- of- the- art picture clarity; to l'multicastl' by simultaneously providing multiple
channels of standard digital programming and/ or HDTV programming; and to "datacast" by providing data such as stock quotes, or interactive TV via the DTV
bitstream. 4. In establishing the statutory framework for the transition to DTV, Congress
directed the Commission to grant any new DTV licenses to all existing television broadcasters. Congress stated in section 336 of the Communications Act that
" [nlothing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest,
convenience, and necessity." Likewise, in implementing section 336 in the 5th Report and Order in the DTV proceeding (62 FR 26966, May 16, 1997), the
Commission reaffirmed that digital TV broadcasters remain public trustees and must serve the public interest, and that existing public interest obligations
continue to apply to all broadcast licensees. 5. The Commission also indicated, however, that "[ blroadcasters and the public
are also on notice that the Commission may adopt new public interest rules for digital television." Commenters in the DTV proceeding adopted different views on
this issue, with some arguing that broadcasters' public interest obligations in the digital world "should be clearly defined and commensurate with the new
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
2
FOR EDUCATIONAL USE ONLY Page 3
65 FR 4211- 01 (Cite as: 65 FR 4211, *4211)
opportunities provided by the digital channels broadcasters are receiving," while others contended that "current public interest rules need not change
simply because broadcasters will be using digital technology to provide the same broadcast service to the public." The Commission declined to resolve the *4212
issue in the DTV proceeding, instead choosing to issue a notice to consider all views at a later point.
6. We undertake that task with this NOI. In doing so, we are guided by several proposals and recommendations made in recent years. Among the most
significant of these are the recommendations of the President's Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters
(" Advisory Committee"). The Advisory Committee was comprised of a broad cross- section of interests, consisting of twenty- two members chosen by the President
from "the commercial and noncommercial broadcasting industry, computer industries, producers, academic institutions, public interest organizations, and
the advertising community." On December 18, 1998, the Advisory Committee submitted a report, which contains ten separate recommendations on the public
interest obligations digital television broadcasters should assume. On October 20, 1999, Vice President Gore submitted a letter to Chairman Kennard asking the
Commission to focus on several of the Advisory Committee's recommendations in particular.
7. In addition to the Advisory Committee's recommendations, on June 3, 1999, People for Better TV filed a petition for rulemaking and a petition for notice
of inquiry. People for Better TV also includes a number of diverse groups. People for Better TV argues that the Telecommunications Act of 1996 requires the
Commission to determine the public interest obligations of DTV broadcasters, that the advent of DTV requires the Commission to consider public interest
obligations anew, and to clarify whether existing guidelines apply, and that both broadcasters and the public need a basic set of public interest standards.
The group contends that the Commission should initiate a rulemaking proceeding to determine the public interest obligations of digital broadcasters. People
for Better TV also urged the Commission to issue a notice of inquiry and hold hearings on the public interest obligations of digital television licensees,
focusing on a variety of categories. On November 16, 1999 People for Better TV submitted a letter to Chairman Kennard reiterating its request that the
Commission initiate a proceeding to determine the public interest obligations of DTV broadcasters.
8. We are also guided by the thoughts and work of other advocates regarding broadcasters' public interest obligations, including those proposals that are
not as closely tied to the new opportunities inherent in digital technology. The conversion from analog to digital is a long transition, and both analog and
digital broadcasters must operate consistently in the public interest during the transition. At the same time, we acknowledge that many broadcasters have served
the public interest in numerous ways over the years. According to a report of the National Association of Broadcasters published in 1998, the nation's
broadcasters provided $6.85 billion in community service in 1996. Therefore, by this NOI, we are asking broadcasters and members of the public to present their
views or ideas on how best to implement the public interest standard during the transition. As the courts have acknowledged, and the transition to DTV
reinforces, the public interest standard is 'Ia supple instrument" designed to be flexible enough to accommodate the "dynamic aspects of radio transmission," and
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
3
FOR EDUCATIONAL USE ONLY Page 4
65 FR 4211- 01
(Cite as: 65 FR 4211, *4212)
we believe that it is an appropriate time to create a forum for public debate.
II. Areas of Inquiry and Request for Comments
9. At this the advent of the digital age, we seek comment on how broadcasters can best serve the public interest during and after the transition to digital
technology. We seek comment on challenges unique to the digital era, how broadcasters can meet their public interest obligations on both their analog and
digital channels during the transition period, and on various proposals and recommendations that have been made on how broadcasters could better serve their
communities of license. We welcome other proposals, and request parties to articulate legal bases for their proposals, and explain how they would serve the
public interest.
A. Challenges Unique to the Digital Era
10. More than 100 DTV stations are currently on the air. These broadcasters, as well as all television licensees upon the conversion to DTV, have the
flexibility either to llmulticast, 'l to provide HDTV, or to "multiplexl' DTV programming and "ancillary and supplementary services" at the same time. Both
the Act and the Commission's implementing actions make it clear that DTV broadcasters must continue to serve the public interest. We seek comment on how
to define these obligations. We are especially interested in specific proposals addressing whether and how existing public interest obligations should translate
to the digital medium. 11. In implementing section 336, the Commission required that broadcasters air
"free digital video programming service the resolution of which is comparable to or better than that of today's services, and aired during the same time period
that their analog channel is broadcasting." In doing so, the Commission stated that "broadcast licensees and the public are on notice that existing public
interest requirements continue to apply to all broadcast licensees." It is thus clear that DTV broadcasters must air programming responsive to their communities
of license, comply with the statutory requirements concerning political advertising and candidate access, and provide children's educational and
informational programming, among other things. But as People for Better TV ask, how do these obligations apply to a DTV broadcaster that chooses to multicast?
Do a licensee's public interest obligations attach to the DTV channel as a whole, such that a licensee has discretion to fulfill them on one of its program
streams, or to air some of its public interest programming on more than one of its program streams? Should, instead, the obligations attach to each program
stream offered by the licensee, such that, for example, a licensee would need to air children's programming on each of its DTV program streams? The Advisory
Committee Report contemplates that, under certain circumstances, a digital broadcaster should not have nonstatutory public interest obligations imposed on
channels other than its "primary" channel. A majority of the members of the Advisory Committee believe that the FCC should prohibit broadcasters from
segregating candidate- centered programming to separate program streams, because they believe that would violate candidates' reasonable access and equal
opportunities. We seek comment on these approaches. In addition, how should we take into account the fact that DTV broadcasters can choose either to multicast
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
4
FOR EDUCATIONAL USE ONLY Page 5
65 FR 4211- 01 (Cite as: 65 FR 4211, *4212)
multiple standard definition DTV program streams or broadcast one or two HDTV program streams during different parts of the day ? In addressing these issues,
commenters should discuss the requirements of section 336( d) of the Act, which states that a "television licensee shall establish that all of its program
services on the existing or advanced spectrum are in the public interest." 12. People for Better TV propose several other ways that digital broadcasters
might better serve the nation's children, such as setting aside a minimum number of hours each week to provide educational programs or *4213 services, which
might include data transmission for schools. In addition, PBTV suggests that the increased information capability of digital technology could improve the
current voluntary ratings system. We seek comment on these ideas. In addition, should the ratings of programs promoted by broadcasters be consistent with the
rating of the program during which the promotions run? We also ask commenters to address how the policies set forth in the Children's Television Policy Statement
should be applied in the digital environment. 13. By definition, ancillary and supplementary services, such as datacasting or
paging, are services other than free, over- the- air services. Do a licensee's public interest obligations apply to its ancillary and supplementary services?
In addressing these issues, commenters should discuss the relevance of several sections of section 336. People for Better TV contends that "the public
interest standard attends to all DTV uses of the spectrum," and points out that section 336( a) (2) states that the Commission I'shall adopt regulations that allow
the holders of [DTV] licenses to offer such ancillary and supplementary services on designated frequencies as may be consistent with the public interest,
convenience, and necessity." We note that section 336( e) requires the Commission to collect fees from DTV broadcasters that offer ancillary and supplementary
services, which fees must "recover for the public an amount that, to the extent feasible, equals but does not exceed (over the term of the license) the amount
that would have been recovered had such services been licensed pursuant to the provision of section 309( j) of this Act and the Commission's regulations
thereunder." In addition, section 336( b) (3) simply requires the Commission to "apply to any other ancillary and supplementary service such of the Commission's
regulations as are applicable to the offering of analogous services by any other person." The Advisory Committee Report recommends that "[ blroadcasters that
choose to implement datacasting should transmit information on behalf of local schools, libraries, community- based organizations, governmental bodies, and
public safety institutions." The Advisory Committee Report suggests that "[ tlhis activity should count toward fulfillment of a digital broadcaster's public
interest obligations," without indicating which regulations are applicable to ancillary and supplementary services. We seek comment on this proposal. How
would datacasting count toward the DTV broadcasters' public interest obligations ? We also seek comment more generally on whether the public interest obligations
should apply to ancillary and supplementary services, and if so, how.
B. Responding to the Community
14. One of a broadcaster's fundamental public interest obligations is to air programming responsive to the needs and interests of its community of license.
Another of its most basic obligations in responding to the public's informational needs is to air emergency information. Technological advances,
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
5
FOR EDUCATIONAL USE ONLY Page 6
65 FR 4211- 01 (Cite as: 65 FR 4211, *4213)
including digital technology, may allow broadcasters to fulfill these obligations better. In addition, broadcasters might make information about
their programming more accessible, and therefore more responsive, to their communities of license through posting such information on websites on the
Internet. As broadcasters move forward with their transition to digital technology, we seek to find ways to help them serve their communities better and
more fully.
1. Disclosure Obligations
15. People for Better TV states that DTV broadcasters should "disclose their public interest programming and activities on a quarterly basis, matched against
ascertained community needs," gathered by reaching out to "ordinary citizens and local leaders" and sought through "postal and electronic mail services as well
as broadcast announcements." The Advisory Committee Report recommends that DTV broadcasters "should be required to make enhanced disclosures of their public
interest programming and activities on a quarterly basis, using standardized check- off forms that reduce administrative burdens and can be easily understood
by the public." The Advisory Committee Report explains that effective self- regulation requires broadcasters to make available to the public adequate
information about what they are doing. The Committee notes that the Commission already requires all TV broadcasters to place in their public files separate
quarterly reports on their non- entertainment programming responsive to community needs and on their children's programming, and recommends that the Commission
require broadcasters to augment these reports. The enhanced disclosures "should include but not be limited to contributions to political discourse, public
service announcements, children's and educational programming, local programming, programming that meets the needs of underserved communities, and
community- specific activities." The Committee also recommends that digital TV broadcasters take steps to distribute public interest information more widely,
through newspapers and websites. We seek comment on these recommendations. 16. Our rules currently require commercial TV broadcasters to include in their
public file, among other things, citizen agreements, records concerning broadcasts by candidates for public office, annual employment reports, letters
and e- mail from the public, issues/ programming lists, records concerning children's programming commercial limits, and children's television programming
reports. Should broadcasters provide the additional types of public service information proposed by the Advisory Committee Report and People for Better TV?
Should they provide information in addition to, or in lieu of, that proposed by the Advisory Committee and People for Better TV ? Should the public file contain
information on what programming has closed captioning and video description? We seek comment on the extent to which the Advisory Committee's and People for
Better TV's proposals parallel the Commission's previous ascertainment requirements, which the Commission repealed in the 198Os, and we ask parties to
address whether the Commission's reasons for eliminating those requirements apply to our consideration of these proposals. These ascertainment guidelines
set forth specific standards for broadcasters on consulting with community leaders, identifying and responding to community needs and problems through
programming, and maintaining and making available various records on their ascertainment procedures.
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
6
FOR EDUCATIONAL USE ONLY Page 7
65 FR 4211- 01 (Cite as: 65 FR 4211, *4213)
17. We currently allow licensees to maintain their public inspection file in computer databases, and encourage licensees that elect this option to post their
public file on any websites they maintain. We seek comment on how many broadcasters provide their public file in this format, and the costs and
benefits of doing so. In particular, we seek comment on how broadcasters could use the Internet to ensure that they are responsive to the needs of the public.
We seek comment on whether broadcasters should be required to make their public files available on the Internet, and whether those broadcasters that maintain a
station website on the Internet could or should use the Internet to interact directly with the public, perhaps by establishing forums in *4214 which the
public could post comments and engage in an ongoing dialogue about the broadcaster's programming. How could these websites and forums be made
accessible to persons with disabilities? In addition, we seek comment on whether it would promote responsiveness to the community to require the disclosure of
certain information (e. g., the individual ultimately responsible for a program's airing or content) that would enable public input more easily and meaningfully.
2. Disaster Warnings
18. The Advisory Committee Report recommends that "[ blroadcasters should work with appropriate emergency communications specialists and manufacturers to
determine the most effective means to transmit disaster warning information. The means chosen should be minimally intrusive on bandwidth and not result in undue
additional burdens or costs on broadcasters. Appropriate regulatory authorities should also work with manufacturers of digital television sets to make sure that
they are modified to handle these kinds of transmissions." The Advisory Committee Report explains that digital technology will provide innovative and
new ways to transmit warnings, such as pinpointing specific households or neighborhoods at risk, and suggests that DTV broadcasters take advantage of
these technological advances. The Advisory Committee Report also states that most of these innovations will require only minimal use of the 6 MHz bandwidth
allocated to digital broadcasters. 19. We seek comment on the Advisory Committee Report's recommendation. One of
broadcasters' fundamental public interest obligations is to warn viewers about impending disasters and keep them informed about related events. What unique
capabilities does digital technology give broadcasters to deliver disaster- related information? What role should the Commission play to encourage
broadcasters to deploy such technology to deliver enhanced disaster information? How can we facilitate the realization of the Advisory Committee's goals? We note
that the Commission recently adopted its "Emergency Alert System" requirements, set forth in part 11 of the Commission's rules. Should the Commission adopt any
different requirements for DTV broadcasters?
3. Minimum Public Interest Obligations
20. The Advisory Committee Report recommends that II[ t] he FCC should adopt a set of mandatory minimum public interest requirements for digital broadcasters * * *
that would not impose an undue burden on digital broadcast stations, * * * should apply to areas generally accepted as important universal responsibilities
for broadcasters," and should be phased in over several years.
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
7
FOR EDUCATIONAL USE ONLY Page 8
65 FR 4211- 01 (Cite as: 65 FR 4211, *4214)
21. We seek comment on the Advisory Committee Report's recommendations regarding minimum public interest requirements. Many members of the Advisory
Committee were concerned that not all television broadcasters would adopt voluntary measures, while other members strongly opposed Commission- imposed
minimum public interest requirements as unnecessary, preferring to give television broadcasters maximum flexibility and discretion in meeting their
public interest obligations. Other parties have argued in our DTV proceeding that the Commission should adopt more specific public interest programming
requirements given the new opportunities broadcasters will have in converting to DTV. They also express the concern that television broadcasters are not airing
a sufficient amount of public interest programming, including local public affairs programming.
22. We invite comment on this debate. Should the Commission establish more specific minimum requirements or guidelines regarding television broadcasters'
public interest obligations. 3 Would this make the license renewal process more certain and meaningful by spelling out the public interest standard in more
detail? How would such minimum requirements be defined? What additional costs, if any, would those requirements impose. 3 Are there sufficient marketplace
incentives to ensure the provision of programming responsive to community needs, obviating the need for additional requirements?
C. Enhancing Access to the Media
23. One of the Commission's long- standing goals in the area of broadcast regulation is to enhance the access to the media by all people, including people
of all races, ethnicities, and gender, and, most recently, disabled persons. Congress emphasized this goal when it amended section 1 of the Communications
Act in 1996 to refine this agency's mission to make available "to all people of the United States, without discrimination on the basis of race, color, religion,
national origin, or sex, a rapid, efficient, Nation- wide, and world- wide wire and radio communication service * * * .I' It further highlighted this goal when
it added provisions to the Act concerning people with disabilities, such as section 713 relating to closed captioning and video description. Given the
efficiencies of digital technology, DTV broadcasters will be able to llmulticast" and air several programs at the same time, as well as provide more information
within the signal of each programming stream. We seek comment on the ways broadcasters can use this technology to provide greater access to the media.
1. Disabilities
24. Digital technology offers great possibilities for broadcasters to make their programming more accessible to persons with disabilities. For example,
digital technology could enable viewers to change the size of captions in order to see both captions and the text appearing on a TV screen. In addition,
digital technology permits broadcasters to provide several different audio programs, which could make video description more widely available.
25. In urging that the Commission issue this NOI, People for Better TV ask that the Commission emphasize, among other things, the "expansion of services to
person with disabilities." The group specifically suggests that a "digital broadcast station should provide closed captioning and description services for
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
8
FOR EDUCATIONAL USE ONLY Page 9
65 FR 4211- 01
(Cite as: 65 FR 4211, *4214)
the blind of PSAs, public affairs programming, and political programming." It urges that "[ claptioning and descriptions in these areas should be phased in
over the first 4 years of a station's digital broadcasts, but should be completed no later than 2006." Similarly, the Advisory Committee Report
recommends that digital TV broadcasters "take full advantage" of new digital technologies to provide "maximum choice and quality for Americans with
disabilities, where doing so would not impose an undue burden on the broadcasters."
The Committee specifically enumerates closed captioning, video description, and disability access to ancillary and supplementary services. The
Committee asks broadcasters to take full advantage of digital closed captioning technology that will enable viewers to change the size of captions to see both
the caption and text otherwise behind the caption, and also calls on broadcasters to expand gradually captioning on PSAs, public affairs programming,
and political programming. The Committee also requests digital broadcasters to allocate sufficient bandwidth among their multiple audio channels to make
expanded use of video description technology feasible. The Committee further suggests that any digital broadcaster that provides ancillary and supplementary
services not impinge on *4215 the 9600 baud bandwidth currently set aside for closed captioning, and encourages broadcasters to explore new digital
technologies to expand access to such services to persons with disabilities, such as offering text options for material presented orally and an audio option
for material presented visually. The Committee finally recommends that the Commission and other regulatory authorities work with set manufacturers to
ensure that modifications in audio channels, decoders, and other technical areas are designed to ensure the most efficient, inexpensive, and innovative
capabilities for disability access. 26. We seek comment on these proposals. We note that the Commission has
adopted closed captioning rules to implement section 305 of the 1996 Act. These closed captioning rules require broadcasters (both analog and digital TV
broadcasters, among other video programming distributors and providers) to caption new programming gradually, according to a phase- in schedule, and to
caption 75% of "pre- rule" programming by 2008. Our rules also require broadcasters to pass through the captioning provided by program suppliers,
unless it requires reformatting. Certain types of programming and providers, however, are exempt from these requirements. Should the Commission impose
different requirements on DTV broadcasters. 7 We note that we have recently proposed to adopt technical standards for the display of closed captioning on
DTV receivers, and to require the inclusion of closed captioning decoder
circuitry in DTV receivers. 27. With respect to video description, we note that the Commission has
submitted two reports to Congress, pursuant to section 305( f) of the 1996 Act (codified as section 713( f) of the 1934 Act), and recently proposed limited
rules to phase video description into the marketplace. In both of its reports to Congress, the Commission noted that, since digital technology does not have
the capacity limitations of analog, its more widespread deployment will, in turn, make more widespread video description available. The Commission
therefore suggested that any phase- in schedules should take into account the transition to DTV. In the Video Description Notice, we thus proposed limited
rules for analog broadcasters, but made clear our intention to extend video description to digital broadcasters. We seek comment on how the Commission
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
9
FOR EDUCATIONAL USE ONLY Page 10
65 FR 4211- 01 (Cite as: 65 FR 4211, *4215)
could encourage DTV broadcasters to take advantage of the enhanced capabilities of the technology to provide more video description.
28. The Advisory Committee Report also recommends that DTV broadcasters make ancillary and supplementary services available to persons with disabilities. We
seek comment on what types of ancillary and services broadcasters might provide, and on how they could be made accessible to persons with disabilities.
2. Diversity
29. Diversity of viewpoint, ownership, and employment have long been and continue to be a fundamental public policy goal in broadcasting. In section
309( j) of the Act, Congress directed the Commission to prescribe competitive bidding rules to promote "economic opportunity for a wide variety of applicants,
including small businesses, rural telephone companies, and businesses owned by members of minority groups and women." In part, to fulfill that mandate, we
offered a bidding credit to new entrants in our recent auction of broadcast licenses. Prior to the adoption of section 309( j), and throughout its history,
the Commission has also pursued a number of initiatives to diversify broadcast station ownership and employment. For example, the Commission identified
"diversification of control of the media of mass communications" as 'Ia factor of primary significance" in its comparative licensing processes, and adopted
diversity and minority "preferences" in certain of its random selection processes. In addition, we are currently conducting a number of studies to
evaluate the barriers to acquisition of broadcast licenses, and barriers to entry or growth, that small, minority-, and women- owned businesses face, as well
as to examine the impact of our multiple ownership rules on broadcast station ownership, and the impact of small, minority, and women ownership of broadcast
stations on service. The Commission has also adopted equal opportunity rules that are designed to foster opportunity in the broadcast industry for minorities
and women. The outreach portion of these rules was struck down on constitutional grounds by the D. C. Circuit. However, we issued a Notice of
Proposed Rulemaking (63 FR 66104, December 1, 1998) proposing new EEO rules, and expect to issue an order in the near future.
30. Broadcasters have voluntarily pursued a number of initiatives to foster diversity. Most recently, broadcasters created an investment fund, with current
initial cash commitments of $175 million and ultimate purchasing power of possibly $1 billion, to spur ownership of television and radio by minorities and
women. In addition, many broadcasters have made voluntary commitments to abide by equal opportunity principles, whether required by law to do so or not.
31. People for Better TV ask that DTV broadcasters exploit digital technology to reflect the diversity of their communities, through any number of practices.
The group explains that network programming cannot respond to diverse needs of each community, and so local stations must come to know and provide service to
diverse communities. It asks that broadcasters support the goal of' diversity and report quarterly on their efforts.
32. The Advisory Committee Report states that l'[ d] iversity is an important value in broadcasting, whether it is in programming, political discourse,
hiring, promotion, or business opportunities within the industry." As such, it recommends that "broadcasters seize the opportunity inherent in the digital
television technology to substantially enhance the diversity available in the
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
10
FOR EDUCATIONAL USE ONLY Page 11
65 FR 4211- 01
(Cite as: 65 FR 4211, *4215)
television marketplace." Many of the Advisory Committee's other recommendations bear on its goal of diversity in broadcasting. For example, the Advisory
Committee Report advocates flexibility in multiplexing so that broadcasters can create new opportunities for minority entrepreneurship through channel- leasing
arrangements, partnerships and other creative business arrangements. In addition, the Advisory Committee Report recommends that, out of the returned
analog spectrum one new 6 MHz channel for each viewing community be reserved for noncommercial purposes, including educational programming directed at minority
groups and other underserved segments of the community. The Committee also recommends that "broadcasters voluntarily redouble their individual and
collective efforts during the digital transition to encourage effective participation by minorities and women at all levels of the industry," including
hiring and promotion policies that result in significant representation of minorities and women in the decision- making positions in the broadcast industry.
The Committee hopes that all of the recommendations will help independent producers provide new programming. We note that several major civil rights
organizations, including NAACP and La Raza, have raised similar concerns about the lack of cultural diversity on network programming.
33. The Advisory Committee Report generally does not contain separate, "4216 stand- alone recommendations on how to achieve diversity in broadcasting; its
recommendations are largely contained within other portions of the report on which we have sought comment above. In addition, as indicated, the Commission
currently has a number of initiatives underway designed to diversify broadcast ownership and employment. What other ways could and should the Commission
encourage diversity in broadcasting, consistent with relevant constitutional standards? We seek comment on innovative ways unique to DTV that the Commission
could use to encourage diversity in the digital era, and encourage commenters to submit specific proposals.
D. Enhancing Political Discourse
34. The Commission has long interpreted the statutory public interest standard as imposing an obligation on broadcast licensees to air programming regarding
political campaigns. The Supreme Court likewise has recognized the impact television broadcasting has on our political system: "Deliberation on the
positions and qualifications of candidates is integral to our system of government, and electoral speech may have its most profound and widespread
impact when it is disseminated through televised debates. A majority of the population cites television as its primary source of election information, and
debates are regarded as the 'only occasion during a campaign when the attention of a large portion of the American public is focused on the election, as well as
the only campaign information format which potentially offers sufficient time to explore issues and policies in depth in a neutral forum." We seek comment on
ways that candidate access to television and thus the quality of political discourse might be improved. We propose no rules or policies in this NOI.
Rather our goal in this NO1 is to initiate a public debate on the question of whether, and how, broadcasters' public interest obligations can be refined to
promote democracy and better educate the voting public. This debate will greatly assist the Commission and Congress in determining what, if any, further
steps should be taken on these important issues.
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
11
FOR EDUCATIONAL USE ONLY Page 12
65 FR 4211- 01 (Cite as: 65 FR 4211, *4216)
35. We note that some broadcasters have devoted many hours of program time to political coverage. According to a report recently issued by the National
Association of Broadcasters (" NAB Report"), in the 1996 election cycle broadcasters valued the time they voluntarily devoted to political campaigns at
$148.4 million. This programming took the form of coverage of debates, conventions and issue fora. Many more hours of news programming not accounted
for in these figures have been dedicated to covering local and national campaigns. In addition, during the 1996 elections, the Fox, PBS, and ABC
networks voluntarily provided free airtime to the major presidential candidates using a variety of formats. For example, during the last six weeks of the 1996
presidential campaign the Fox television network offered each major presidential candidate free airtime, including the opportunity to make ten one- minute
position statements that were broadcast in prime time. The PBS and ABC television networks also set aside free airtime for presentations by the major
presidential candidates, and the A. H. Belo Corporation provided free airtime in selected federal congressional elections and gubernatorial races. The
Commission exempted these efforts from the equal opportunity requirements, finding that the proposals qualified as on- the- spot coverage of a bona fide news
event. We seek comment on what the Commission can do to encourage these kinds of voluntary efforts by television broadcasters.
36. On the other hand, we note that there are indications that many television broadcasters are providing scant coverage of local public affairs, 'and what
coverage there is may be shrinking. For instance, a 1998 study by the University of Southern California Annenberg School for Communication found that
only 0.31% of local news focused on the California governor's race, compared to a figure of 1.8% in 1974. Similarly, an April 1998 Joint Report by the Media
Access Project and the Benton Foundation found that, in the markets examined, 35% of the stations provide no local news, and 25% offer neither local public
affairs programming nor local news. 37. The Advisory Committee Report recommends that television broadcasters
provide five minutes each night between 5: 00 p. m. and 11: 35 p. m. (or the appropriate equivalent in Central and Mountain time zones) for "candidate-
centered discourse" thirty days before an election. The Committee envisions maximum flexibility for broadcasters, allowing them to choose the candidates and
races-- federal, state, and local-- that deserve more attention. The Committee envisions that stations could choose formats, which might include giving
candidates one minute of airtime, conducting mini- debates, or doing brief interviews, or including the "discourse" in newcasts. We seek comment on this
idea. More generally, are there steps the Commission can take to promote voluntary efforts to enhance political debate and the information the public
receives concerning candidates?
38. Others have proposed that the Commission adopt rules requiring broadcast licensees to provide time to candidates. Although the Advisory Committee Report
proposed voluntary efforts, thirteen members of the Committee-- a majority-- contend that the Committee's recommendations do not go far enough, and that the
Commission should, among other things, require television broadcasters to provide some airtime for national and local candidates. In addition, former FCC
General Counsel Henry Geller, on behalf of himself and others, ask the Commission to require television broadcasters to provide political candidates a
reasonable amount of time each day in advance of a general election. More
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
12
FOR EDUCATIONAL USE ONLY Page 13
65 FR 4211- 01 (Cite as: 65 FR 4211, *4216)
specifically, Geller et al. propose that the Commission require television broadcasters to provide twenty minutes of airtime each day thirty days before a
general election in even- numbered years, and fifteen days before in odd- numbered years, when there are fewer elections. Geller et al. suggest that the
Commission give television broadcasters the flexibility to decide how to provide the total of twenty minutes, except that the time should be provided between
6: 00 a. m. to midnight, with at least five minutes in prime time. Geller et al. further suggest that the Communications Act requires the Commission to leave the
selection of the races to be covered to the licensees. Geller et al. contend that the Commission's public interest authority extends to requiring
broadcasters to provide time. We seek comment on these approaches, and on the Commission's authority to require broadcasters to provide airtime to political
candidates. We also seek comment on the Advisory Committee's recommendation that the Commission should prohibit television broadcasters from adopting
blanket bans on the sale of airtime to state and local candidates.
IV. Administrative Matters
39. Comments and Reply Comments. Pursuant to applicable procedures set forth in ~~ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419,
interested parties must file comments on or before March 27, 2000, and reply comments on or before April 25, 2000. Comments may be filed using the
Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121
(1998). *4217 40. Comments filed through ECFS can be sent as an electronic file via the
Internet to http:// www. fcc. gov/ e- file/ ecfs. html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen,
commenters should include their full name, Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an
electronic comment via e- mail. To get filing instructions for e- mail comments, commenters should send an e- mail to edfs@ fcc. gov, and should include the
following words in the body of the message, "get form @your e- mail address>." A sample form and directions will be sent in reply.
41. Parties who choose to file by paper must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie
Roman Salas, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, S. W., TW- A325, Washington, D. C. 20554.
42. Parties who choose to file paper should also submit their comments on diskette. These diskettes should be addressed to: Wanda Hardy, Paralegal
Specialist, Mass Media Bureau, Policy and Rules Division, Federal Communications Commission, 445 Twelfth Street, S. W., 2- C221, Washington, D. C. 20554. Such a
submission should be on a 3.5 inch diskette formatted in an IBM compatible format using Word 97 or compatible software. The diskette should be accompanied
by a cover letter and should be submitted in "read only" mode. The diskette should be clearly labeled with the commenter's name, proceeding (including the
lead docket number in this case (MM Docket No. 99- 360), type of pleading (comment or reply comment), date of submission, and the name of the electronic
file on the diskette. The label should also include the following phrase "Disk Copy-- Not an Original." Each diskette should contain only one party's pleadings,
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
13
FOR EDUCATIONAL USE ONLY Page 14
65 FR 4211- 01 (Cite as: 65 FR 4211, f4217)
preferably in a single electronic file. In addition, comrnenters must sent diskette copies to the Commission's copy contractor, International Transcription
Service, Inc., 445 Twelfth Street, S. W., CY- B402, Washington, D. C. 20554. 43. Comments and reply comments will be available for public inspection during
regular business hours in the FCC Reference Center, Federal Communications Commission, 445 Twelfth Street, S. W., CY- A257, Washington, D. C. 20554. Persons
with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418- 0270, (202) 418- 2555 TTY, or bcline@ fcc. gov. Comments
and reply comments also will be available electronically at the Commission's Disabilities Issues Task Force web site: www. fcc. gov/ dtf. Comments and reply
comments are available electronically in ASCII text, Word 97, and Adobe Acrobat. 44. This document is available in alternative formats (computer diskette, large
print, audio cassette, and Braille). Persons who need documents in such formats may contact Arminta Henry at (202) 4810- 0260, TTY (202) 418- 2555, or
ahenry@ fcc. gov. 45. Ex Parte Rules. Pursuant to the provisions of 47 CFR 1.1204( b) (1) this is
an exempt proceeding. Ex parte presentations to or from Commission decision- making personnel are permissible and need not be disclosed.
IV. Ordering Clause
46. Pursuant to the authority contained in sections 4( i), 303( g), 303( r), 336 and 403 of the Communications Act of 1934, as amended, 47 U. S. C. 154( i), 303( g),
303( r), 336, and 403, this Notice of Inquiry is adopted. Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR DOC. 00- 1794 Filed l- 25- 00; 8: 45 am]
BILLING CODE 6712- 01- P
65 FR 4211- 01, 2000 WL 57806 (F. R.) END OF DOCUMENT
Copr. (C) West 2000 No Claim to Orig. U. S. Govt. Works
14
Cheri Huffman 3439 Wayne Rankin Lane
Louisville, Tennessee 37777
March 17, 2000
William E. Kennard
Chairman Federal Communications Commission
445 12* Street SW Room 8B- 201 H
Washington, DC 20554
RE: Public interest Obligations of Television Broadcast Licensees 47 CFR Part 73
MM Docket No. 99- 360 FCC 99- 390
Dear Chairman Kennard:
I am certified public accountant currently in my second year of law school
at the University of Tennessee, Knoxville. I am commenting on the proposed
rule for the public interest obligations of television broadcast licensees (MM
Docket No. 99- 360) as a component of an administrative law class.
The Federal Communications Commission (FCC) should not impose new
or additional public interest obligations on digital television licensees until the
transition to digital television is complete and the operations of the industry are
firmly established. Broadcasters already face an unstable environment due to
the technical and economic uncertainties included in the transition to digital
television. The current public interest requirements for analog television, which
also apply to digital transmission’, will adequately serve to protect the public’s
interest until the digital industry is fully developed.
15
TECHNICAL UNCERTAINTIES
The technical uncertainties in the transition to digital television (DTV)
include: 1) the methods that licensees will use to broadcast, 2) the impact that
cable television providers will have on the provision of digital service, and 3) the
timing of the transition to DTV. These uncertainties make it unreasonable to
estimate the obligations that should be placed on broadcasters prior to the
complete transition to DTV. Absent a strong analysis of the actual benefits
and/ or burdens of Dn/ on broadcasters, the type and amount of new or
additional public interest obligations can not be sufficiently appraised.
Broadcast Methods
At this juncture, the methods that licensees will use to broadcast is
unpredictable. Whether broadcasters will primarily utilize single- signal high
definition broadcasting or multiple channel multiplexing is unknown. This
variable contributes to the difficulty of adequately estimating the profitability of
digital television.
With respect to multiplexing, the Gore Advisory Commission made the
following recommendation:
“Once digital television becomes a reality, apply a two- year moratorium to provide ample opportunity for broadcasters to
explore options in the marketplace. Thereafter, if broadcasters
elect to multicast and in so doing realize a substantial increase in
revenue, Congress or the FCC should apply a menu of options to
multicasting broadcasters.“ 2
The recommended options included either a monetary fee or an in- kind public
service contribution.
2
16
Although this idea has merit, the subjective elements overshadow the
basic premise. First, the Gore Advisory Commission fails to provide the criteria
that will establish DW as a “reality.” Second, two years may not provide
sufficient time to develop the stable revenue history necessary to calculate a
revenue- based fee for stations that choose not to air the specified public interest
programming. Third, the amount necessary to constitute a “substantial increase
in revenue” is subject to considerable interpretation. Before the subjective
elements of the Gore Advisory Commission’s recommendation are clarified,
broadcasters should first have ample opportunity to explore broadcasting
methods.
Impact of Cable
Imposing public interest requirements on broadcasters at this time also
fails to recognize the potential impact of cable providers, who are less restricted
by governmental regulation. 3 Unfortunately, the likely impact of cable providers
on digital television may remain unknown for some time because cable providers
and consumer electronics manufacturers have yet to agree on many DTV- Cable
compatibility issues4 The minimal amount of technical standards already
agreed upon came only after the FCC threatened immediate rulemaking on the
technical issues. ’ The effect of cable providers on the revenues and market
share of television broadcasters could significantly alter the risks and
opportunities available.
The “pay- or- play” model considered by the Gore Advisory Commission
would level the disproportionate regulation between broadcasters and cable.
3
.- -. - “I__ .-._.. -- .---“- ---. ., __.--. . I ._.. __ ,--__-_--” ..-. I__. __.. l___ -.. “.__ ~.-
17
Unfortunately, that proposal was emphatically rejected by the Advisory
Commission. Until the consequences of cable DTV development can be
adequately assessed, the FCC should not attempt to set regulations in an
unpredictable environment.
Transition Timing
All stations, except the Public Broadcasting Station, are required to
broadcast digitally by 2006 unless 85 percent of the broadcasters’ communities
do not have a television set that receives digital signals. This creates a flexible
deadline that could delay digital broadcast requirements until after 2010.”
Consumers may be reluctant to purchase digital televisions until broadcasters
have provided additional DTV programming. Conversely, broadcasters may be
reluctant to provide additional DW programming until more televisions receive
the broadcasts. This Catch- 22 has the ability to significantly delay the transition
to DTV. Until these matters are addressed and resolved, new public interest
requirements only add an additional variable to an already chaotic mix.
ECONOMIC UNCERTAINTIES
Additional public interest requirements would also add more financial
demands on broadcasters already facing an uncertain economic future with
digital television. The extreme capital requirements needed for the transition, in
combination with an unconvinced consumer base and increased programming
costs, pose huge challenges for the broadcasting industry.
Equipping a local television for digital television costs between three
million and ten million dollars. 7 During the transition to digital television,
4
18
broadcasters also must continue broadcasting in analog. One of the risks
assumed by broadcasters is that these capital expenses will be offset by a
consumer base that has yet to materialize.
Prices for analog television decoders begin at approximately $650, while
high- definition digital televisions start at $3,000 and most are over $5,000.8 The
premise that Americans can afford to pay this premium in return for enhanced
viewing seems dubious at best. Although manufacturers expect prices for the
television units to drop below $3,000’, these televisions will remain out of the
price range of most families until their prices become comparable with analog
sets. In essence, the broadcasters are investing material capital sums in
preparation for a consumer base that is currently undeveloped.
The Gore Advisory Commission recognized that the production costs
associated with digital programming are IO to 20 percent higher than the costs
required for analog programming. Therefore, broadcasters will also be forced to
absorb an increase in variable costs before the consumer base is stabilized.
In an effort to offset these costs, broadcasters have entered into
underwriting deals with electronics manufacturers. For example, CBS’
agreements with Mitsubishi and Samsung have subsidized specific HDTV
broadcasts.” However, the future of this type of programming assistance is
speculative. Whether or not these underwriting agreements should be
considered in assessing the burdens placed on broadcasters will depend on
whether the underwriting subscriptions continue after the transition to DTV is
complete.
5
19
ALTERNATIVE PROPOSAL
I propose that the FCC delay any new or additional public interest
requirements for broadcasters until the transition to DTV is fully complete and
the repercussions of any additional obligations can be assessed with greater
accuracy. The information received from this Notice of Inquiry (MM Docket No.
99- 360) can certainly provide future assistance in formulating public concerns.
However, to truly meet the public’s interest the FCC should focus current efforts
on methods to ensure that the transition from analog is as smooth as possible.
Broadcasters are required to continue to transmit in analog signals until at
least 2006. During the transition, broadcasters should continue to meet existing
public interest requirements. If a broadcaster chooses to multi- cast during the
transition, the existing public interest requirements should be met on the
broadcasters primary channel. When analog reception is no longer a viable
alternative for consumers, the DTV market will be forced to develop.
Broadcasters will no longer have the additional expense of transmitting on two
frequencies, and the total capital costs associated with the implementation of
DTV will be known.
Once a complete transition to digital has occurred, the FCC should apply
the two- year moratorium suggested by the Gore Advisory Commission to all
additional public interest requirements. At the end of this interim period, the
adequacy of existing public interest requirements in the digital format can be
assessed from a current perspective. Broadcasters will have had the chance to
experiment with the opportunities provided by the digital medium after the
6
20
transition responsibilities have concluded. The consumer market for the DW
should be stabilized, and all consumers will have the need as well as the
opportunity to address any relevant concerns. At the current time, comments
from consumers are incomplete due to both the limited number of digital
televisions in use and the fact that most consumers continue to purchase and
view analog televisions. Postponing any regulations, even if voluntary, would
allow more thorough input into the process. Until that time, broadcasters would
be free to experiment with any new or additional public interest requirements
they feel necessary to maintain their public trusteeship.
In conclusion, the FCC should not impose new or additional public
interest obligations on DTV licensees until the technological and economic
uncertainties facing the industry are resolved. Once a complete transition to
DTV and a two- year moratorium have occurred, the rulemaking procedures
should begin.
I respectfully request that the FCC consider this proposal as one that
keeps the broadcasting industry from absorbing an undue burden while
maintaining the public interest requirements necessary to meet the broadcasters’
public trusteeship.
Sincerely,
Cheri Huffman
7
-.^- .l-“--...-.-( - -.. - . . ,... __ ^ .-.-..~,__ . --, l-- lll.” ..“_.“-~-““-
21
’ 5’” Report and Order in the DTV Proceeding, 60 Fed. Reg. 26,966 (1997) 2 Final Report of the President’s Advisory Committee on the Public Interest Obligations of Digital
Television Broadcasters Report (Dec. 18, 1998) 3 Dick Wiley, From the Desk of.. .Dick Wiley, Communications Today, Feb. 7, 2000.
4 This Week’s News, Television Dioest, Feb. 28, 2000. 5 Id.
6 Gigi Sohn, National Center for Accessible Media (visited Mar. 13, 2000)
chttp:/ Ewww. wgbh. org/ wgbh/ pages/ ncame/ dtv. html~. 7 Rocky Swift, Florida Television Stations Ready for 2002 Switch from Analog to Digital9 Sun
Herald, Mar. 2, 2000. 8ision and Video. Special Section. TV Now (Your guide to the chokes in a time of television
transition), Consumer Reports, Dee, 1999, at 12.
’ James Morrow, News You Can Use; Personal Technology, U. S. News and World Report,- Feb. 28,2000,
at 82. ” Glen Dickson, CBS nets HD Spotts Deals, Broadcastina 8 Cable, Jan. 10, 2000, at 52.
8
22
Administrative Law: Comment to F. C. C
Steve Cox
414- 37- 9767
-... .___. l_._ l I”
__ __ -. l--.....“.-.-.-.
- - _ - “. .._-_
--
23
Introduction
This comment is in response to the F. C. C.‘ s Notice of Proposed Ruiemaking
dated January 26,200O (MM Docket No. 99- 360; F. C. C. 99- 390; 65 FR 421 l), entitled
“Public Interest Obligations of Television Broadcast Licensees.” My name is Steve Cox
and I am a law student at the University of Tennessee. I am currently enrolled in a class
on Administrative law and am writing to you as part of an assignment. In this comment I
will discuss proposals for new requirements as they would relate to digital broadcasters,
the obligations every broadcaster has (or should have) to disclose the content and
programming they transmit, obligations of digital broadcasters as they relate to disaster
warnings, and every broadcasters minimum public interest requirements. Briefly, I
believe that more stringent requirements should not be placed on digital broadcasters as
opposed to regular broadcasters, but the digital broadcasters should have to comply with
all present and hereinafter adopted regulations on each of their broadcast streams. I
believe that all broadcasters should post the content and type of programming they are
broadcasting on their website, and provide a vehicle for public comment. Furthermore, I
believe that digital broadcasters, (if economically feasible) should provide enhanced
disaster warnings. Finally, I encourage the Commission to define its “minimum public
interest requirements” more concretely.
I. Application of New Reauirements
First, in paragraph five of the NO1 the Commission indicated that “[ blroadcasters
and the public are also on notice that the Commission may adopt new public interest rules
1
-. ___. -_ _ ._-_-“- -. I... ____ I..,__ . _.- __-. --. lll _)“ I --
24
for digital television.” This statement met with two main reactions. The tirst claimed
that the new rules “should be clearly defined and commensurate with the new
opportunities provided by the digital channels broadcasters are receiving. . . .” The
second viewpoint exposed that “current public interest rules need not change simply
because broadcasters will be using digital technology to provide the same broadcast
service to the public.” 65 FR 4211,4212 (2000). I believe the proper course is
somewhere in between.
As long as broadcasters are offering the same services, there is no reason to issue
new rules and regulations simply because they are now using a more efficient and diverse
means to transmit their signals. I do not believe we should succumb to the notion that
just because we have something different we have to pass new regulations and standards.
So in one sense, I see no reason to burden digital broadcasters with government
regulation that they would not otherwise have to deal with. Why should the FCC make it
more difficult and orrnerous for digital broadcasters to comply with regulation? What
purpose does that serve?
By the same token, however, digital broadcasters should not get a break from the
rules because they find a more efficient way to broadcast. Digital broadcasters should
not be allowed one signal that complies with the Commission’s regulations while its
other signals are free from any and all requirements. Therefore, I propose that if a
broadcaster chooses to multicast (sending out multiple signals along the same channel
allowing the customer to choose) he should be required to comply with all Commission
regulations on all signals. In effect, he should commit the same percentage of time,
2
25
money, and energy to public interest requirements on all signals. This brings me to my
second, related point.
Page 4212 of the NOI states in part:
It is . . . clear that DTV broadcasters must air programming responsive
to their communities of license, comply with the statutory
requirements concerning political advertising and candidate access,
and provide children’s educational and informational programming,
among other things. But as People for Better TV ask, how do these
obligations apply to a DTV broadcaster that chooses to mulitcast? Do
a licensee’s public interest obligations attach to the DTV channel as a
whole . . . or to air some of its public interest programming on more
than one of its program streams? . . . A majority of the members of the
Advisory Committee believe that the FCC should prohibit broadcasters
from segregation candidate- centered programming to separate program
streams, because they believe that would violate candidates’
reasonable access and equal opportunities.
How these questions are answered depend on which theory one adheres to regarding the
reason for regulation. According to one viewpoint, the regulations provide for certain
information to be made available to the public. The Commissions rules state the type of
information to be made available is valuable and necessary. Whether or not the public
uses or accesses this information is entirely up to them. The point is that every
broadcaster has a duty to make the information available. According to this viewpoint, it
would be perfectly acceptable for a digital broadcaster to broadcast all material necessary
to fulfill the requirements as directed by the FCC on one signal. The public would have
access to the information if they want it, and if they do not, the other signals will be free
to broadcast without FCC requirements.
According to the second viewpoint, the goal of the regulations mandating the
access to public information is to make sure the public gets the information. The
information is important. Therefore it is necessary to inform people using rules and
regulations that govern the broadcast of public interest information because they would
3
- ._-._. ._. .._-_.I .-~I -. _I”_ t_ lX-- l-. l.^ ,. _~ ~._- -
26
not otherwise access it. Here, digital broadcasters should be required to fulfill public
interest requirements on all streams.
For the same reasons I stated in my first point, I believe digital broadcasters
should be required to transmit the required public interest information on all broadcast
streams. Allowing a digital broadcaster to allocate all public interest requirements to one
digital stream would not further Congress’ goal of giving wide access to public interest
information. ’ Fewer people would choose to access the information. The FCC does not
mandate these requirements so the public will have the information at its disposal; the
requirements are mandated to make sure the public watches and receives the information.
Otherwise, public interest information would not be required on television. People can
always buy newspapers.
II. Disclosure Oblkations
The Advisory Committee Report recommends that DTV broadcasters “should be
required to make enhanced disclosures of their public interest programming and activities
on a quarterly basis, using standardized check- off forms that reduce administrative
burdens and can be easily understood by the public.“* Furthermore, the enhanced
disclosures “should include, but not be limited to contributions to political discourse,
public service announcements, children’s and educational programming, local
programming, programming that meets the needs of underserved communities, and
community- specific activities.” These recommendations are reasonable. The only real
’ 47 U. S. C. A. 9 336( d) states “Nothing in this section shall be construed as relieving a television
broadcasting station from its obligation to serve the public interest. . . .”
4
27
problem I have with these requirements is that they appear to apply only to Digital
Broadcasters. If these disclosure requirements are to become regulations, they should
apply across the board to all broadcasters. That being said, however, I believe these
requirements would go toward achieving the Commission’s goal in making public interest
material accessible to the public. Most all Broadcasters today have a website. By
mandating that public interest programming information be placed on a Broadcaster’s
website, the information will be readily available for concerned parents and other
members of the public. I think we all know that TV listings in the newspaper are not
always accurate or complete as to the content and themes of certain programs. Placing
descriptions of public interest programming on the web will allow any one to “shop” for
the best source and variety of public interest TV.
Furthermore, this should not be a large expense to broadcasters. As mentioned
previously, the Advisory Committee recommended that check- off forms be used to
reduce administrative burden in handling the disclosures. The reduction of administrative
burden should likewise reduce the burden on the broadcasters to disclose their public
interest programming. Again, placing this information on the internet would not be a
significant burden. This information should include the type of program, and the
broadcast should be classified as to its intended audience. Is this a childrens’ show? If
so, what are the intended age groups ? If the show is one dedicated to political discourse,
the subject matter to be covered should be made available on the web so that people can
choose what they are interested in. These disclosure requirements will be of great help to
the public, yet should not be overly burdensome to broadcasters.
'65FR4211,4213( 2000).
5
28
I would also like to comment on the how broadcasters could use the Internet to
ensure that they are responsive to the needs of the public. On each broadcasters’ website
where public interest broadcasts are described and listed, there should be opportunity for
feedback. The easiest way would be to include a survey along with each show. The
survey could be a form drafted by the Commission to insure fair, unbiased questions and
ease of understanding. The survey form would be the same for each type of public
interest show, i. e., political, children, etc., and would be uniform for all broadcasters.
This would allow the public to comment directly to the broadcaster on any given show.
Each website could contain an email address specifically for the publics concerns.
However, for the same reason that the enhanced disclosures would be done on check- off
forms to reduce administrative burden, requiring broadcasters to read through each e- mail
may prove too burdensome. The forms would likewise reduce the broadcaster’s burden
of responding to public opinion regarding public interest material. Plus, the relative ease
of tabulating the responses would allow broadcasters to meet the public’s needs more
quickly.
III. Disaster Warninps
The Advisory Committee reports that Digital Television will enable broadcasters
to pinpoint certain households in transmitting disaster warnings. Should this
advancement be possible without undue burden on the broadcasters, this type of
pinpointing should be mandatory. Although this recommendation conflicts with my
general belief that Digital Broadcasters should not be subject to requirements other
6
29
broadcasters are not, I believe there should be an exception here due to the overwhelming
public safety interest. I suggest that some people see a warning on television and instead
of paying attention to the message, they complain about that annoying little sound that
comes with it. The bottom line is that some people do not believe the dangerous
conditions apply to them. By letting everyone know the exact location of a tornado, or
the path of a thunderstorm, the public as a whole will pay more attention to the warning.
In addition to increased awareness, the new technology could serve to warn
certain groups specifically. For instance, those in the direct path of a tornado would
know to go to the basement. The specificity of a transmission will bring its import closer
to home.
If this pinpointing is possible, the NO1 asks how the Commission should
encourage digital broadcasters to deploy such technology. If the burden is not
significantly higher than the current cost and expense to broadcasters to broadcast
emergency warnings, then the current regulations should simply be modified to include
this type of transmission. Should the costs of such transmissions be higher than those
broadcasters currently experience, the Commission should attempt to alleviate some of
the cost.
IV. Minimum Public Interest Requirements
First, I have made my position clear that digital broadcasters should not have
higher or more stringent standards in the area of public interest transmissions. The
standards should be the same for everyone. That being said, I believe the Commission
should look into how to define public interest broadcasting. The regulations do not give
7
30
any definite instruction on public interest programming such as children’s education. 3
Indeed, the current regulations do not even mandate affording time to political
candidates. They simply state that if time is afforded, it should be equal. 4
I believe the Commission should define public interest requirements more
specifically, although I do not believe the cost to the broadcasters must increase
significantly. Each broadcaster should be required to give equal time to local and
national politics. This requirement may be filled on the local news every night. Indeed,
many broadcasters may already adhere to this proposed rule, and therefore there will not
be any additional burden on them. Other digital broadcasters may wish to contract with
local stations to carry their local news. In either case, no more than half an hour should
be mandated by the commission for either regular or digital broadcasters. The
regulations in place currently regarding giving each candidate for office equal air- time
are prudent and should not be altered.
V. Conclusion
To conclude, digital broadcasters should not face heavier burdens and greater
regulation simply because they broadcast using the new digital technology. To the extent
that it is economically feasible, digital broadcasters should provide greater accuracy in
warning of impending disasters. Television as a whole would benefit from more
disclosure by broadcasters, and the intemet would be an effective and relatively
inexpensive way to communicate with the public at large. Lastly, minimum public
’ 47 C. F. R. $ 73.671 simply states that broadcasters should broadcast educational programming for children
over the term of their license.
’ 47 C. F. R. 3 73.1941
8
31
interest requirements are good for television if they are defined precisely by the
commission and are not too burdensome on broadcasters as a whole.
I ask that you consider carefully any new rules regarding digital television.
DTV has the potential to open up new paths of communication. However, access to these
paths should not be made too difficult by excessive regulation. To the extent feasible,
however, television as a whole can be improved with more precise, definite requirements.
Sincerely,
Stephen E. Cox, Jr.
32
Comments to the Federal Communications Commission
47 CFR 73 (MM Docket No. 99- 360; FCC 99- 390)
Public Interest Obligations of Television Broadcast Licensees
This comment discusses the applicability of the Children’s Television Act of 1990
to digital television licensees.
Rachel M. Eaton
Introduction:
This comment is narrowly focused on the Children’s Television Act of 1990
(“ Act”) as it should be applied to digital television licensees. I am writing this comment
as a third year law student at the University to Tennessee College of Law. As a young
person planning to have children of my own, I see digital television as effecting my
future family life in a significant way. However, my concern also lies with the rest of
i\ merican children, some of whom will not enjoy DTV technology for many years.
My proposals seek to find a balance between the compelling interest in children’s
education with our nation’s valued First Amendment rights. In the past the limitations of
traditional television broadcasting created a need for regulation of children’s television.
However, the advent of DTV, along with VHS and DVD technology will gradually make
regulation unnecessary. I propose the regulations contained in the Act continue to apply
to non- digital broadcasters. Digital television broadcasters, however, should not be held
to the standard set out in the Act. DTV licensees should be given every incentive to
self- regulate, but it is likely the market will take care of itself, as pressure from parent
and school groups increases. Broadcasters are seeing children’s television as a valuable
market, with quality children’s programming becoming the standard, not the exception.
33
A History of Children’s Television Regulation:
A reading of the first amendment would seem to imply an attitude against
restrictions in television broadcasting. However, the Federal Communications
Commission (FCC) exists to regulate various aspects of human expression, including
television broadcasts. What has been called the “Reagan Revolution” ’ of the 1980’s
sought to deregulate all industry in the United States. The trend toward deregulation was
adopted by the FCC and the television industry began a move away from regulation.
This hands- off approach continued until the passage of the Children’s Television Act of
1990. The Act was prompted by public sentiment that the deregulation policy of the
Reagan administration was having a negative impact on children’s television
programming. It should be noted that the Act was not passed until Reagan was out of
office, and even then Bush merely allowed the passage of the Act, never actually signing
the bill into law. ’ Studies conducted in the 1980’s suggested television licensees
were not offering enough children’s programming because there was no financial
incentive to do so. ’
Basically, the Act consists of three parts: time restrictions on commercials during
children’s broadcasting, the programming standards under consideration for license
renewal, and the establishment of an endowment to promote quality children’s
programming. Another element has been added to the Act under the Clinton
‘Michael J. Palumbo, Broadcast Regulation, Has the Marketplace Failed the Children:
The Children’s Television Act of 1990, 15 Seton Hall Legis. J. 345 (1991) (this article
was written just after the passage of the Act, and contains constitutional concerns raised
by the limitations of the Act).
‘Palumbo, supra note 1 at 356.
‘John Uscinski, Deregulating Commercial Television: Will the Marketplace Watch Out
for* Children. , 3 34 Am. U. L. Rev. 141, 142 (1984) (a article written before the passage of
the Act, which expresses the fundamental concerns leading up to the passage of the Act).
. . -..---- - .-. ._--- . ._ ~. ,^._.. _ -.._ --- I__ ._- I
34
administration, which includes mandatory minimums on the amount of children’s shows
with more specific quality standards required for license renewal.
The Act itself appears to have a broad policy motive: putting the best interests of
children first. It calls for programming that develops “fundamental intellectual skills” ’
and demands overall programming which serves “the educational and informational
needs of children”. ’ However, the actual regulations of the Act are very specific. The
commercial restrictions are clear, limiting broadcasters to specific amounts
commercial air time per hour. Also, the more recent three hour minimum of children’s
programming is quite strict. Stations which broadcast at least three hours each week of
programming “specifically designed to serve the educational and informational needs of
children will be found in compliance with their general obligation under the Act.“ 6 Of
course, clearly written regulations are appreciated, especially in light of the rather
nebulous “public interest” standard of the Communications Act of 1934. However, it
seems as though the Act treats broadcasters much like the children it seeks to protect.
By passing the Act, “Congress . . . sought to protect children from the abuse of the
lack of programming choices television imposes.“ ’ However, digital television does not
limit broadcasters to airing one show at a time. It is very possible the Act has no
relevance in the realm of DTV. Broadcasters are no longer are forced to choose between
highly rated adult programming and less profitable children’s shows. Of course,
non- digital broadcasters are still limited to airing one show in any given time slot. The
4Children’s Television Act of 1990, 47 USCA sec. 394( a) (1999).
‘hi. at sec. 303b( a)( 2). ‘James .I. Popham,
Passion, Politics and the Public Interest: The Perilous Path to a Quantitative Standard in the Regulation of Children ‘s Television Programming, 5
CommLaw Conspectus 1 (1997) ( contains a detailed account of the political process
leading up to the passage of the mandatory minimum programming guidelines).
‘Palumbo, supra at note 1,400.
35
Act still has a place for non- digital licensees, and should continue to be in effect so long
as there are children without the privilege of DTV. It appears as though a return to
Reagan- era deregulation will work in relation to digital television licensing. Children are
a powerful audience, and there is money to be made by airing shows which educate
children and impress parents. Networks now have the incentive they need to air quality
children’s television, without sacrificing prime time adult programming.
The Nickelodeon Effect:
Since the introduction of Sesame Street more than thirty years ago, PBS has set
the standard for children’s broadcasting. Quality children’s television is easy to find
when Wishbone, Big Bird or Barney come on the air at times geared to increase viewing
by children. But, PBS is a “public” television station, which generally means the
pressure of turning a profit is not a factor in choosing programming. As much as PBS
programs may be a model to other networks, it is unrealistic to expect a profit- driven
network to produce and air shows which create little or no revenue. A better model is a
network which seems to produce entertaining and educational shows while still turning a
profit. In the past decade, one network has proven this is possible. That network is
Nickelodeon, a network parented by MTV.
Nickelodeon has tuned into the recent trend of children in the marketplace. It is
easy to see from the sale of Pokemon cards or the box office returns from Disney movies
that parents spend huge amounts of money on their kids. Increasingly parents are
pushing their children toward entertainment which is also educational.
-.__ ._.....__ - . _ .-_;___.-- ,, l.
36
The most impressive example if Nickelodeon’s commitment to quality
programming is Nick Jr., a series of shows airing weekday mornings. With Nick Jr., the
network demonstrates over- compliance with the commercial restrictions of the Act.
Instead of spreading commercials throughout an hour of programming, the commercials
are shown as a group at the end of the hour. The only breaks during programming are for
educational skits and station identification. Nickelodeon takes a big risk by airing an
hour’s worth of commercials at once. Viewers could simply anticipate the hourly break
and not watch the commercials. But the network is catering to its preschool audience,
with an understanding of how important the educational needs of young children are.
A primary reason for the commercial limits imposed by the Act is the suggestion
that children are influenced by the content of commercials. 8 Studies have shown that
“children 5 years or younger have difficulty identifying advertising content and
discriminating the advertisements from the program.“ 9 Nick Jr. eliminates this problem
by the use of Face. Face is a cartoon face who appears on the screen between the show
and the commercials. Face informs the audience of the upcoming commercials and when
programming will resume. Additionally, Face throws in educational tidbits for the
viewer.
However, the primary achievement of Nick Jr. is not in its advertising policy.
What impresses me most is the content of the programming. Two shows in particular
demonstrate how a private network can produce quality entertainment for children.
These shows are Gula Gula Island and Alegra’s Window. Gula Gula Island involves a
‘Diane Aden Hayes, The Children ‘s Hour Revisited: The Children ‘s Television Act of
1990, 46 Fed. Comm. L. J. 293, 296 (1994) (an excellent article filled with suggestions to
make the Act more effective, also a good explanation of the Act and its implementation).
‘Palumbo, supra note 1, at 376.
37
family living on the Carolina coast as they learn and deal with new situations in daily life.
The unusual aspect of the show is the diversity of the cast. The main characters are part
of an African American family who educate other characters about their heritage. The
rest of the cast are a mixture of Asian, Hispanic, and Caucasian neighbors in the
community. The example set by the show is one of close family ties and close
community bonds, without regard to race or color.
Another well written show on Nick Jr. is Alegra’s Window. The fact that most of
the characters are puppets does not make this show unrealistic. The setting of much of
Alegra’s Window is at the daycare center Alegra attends. Nickelodeon has chosen to
deal with the emotional issue of children going to daycare when mothers go back to
work. Naturally, the primary focus of the programming is educational, but very often
Alegra’s feelings come into play. The characters help Alegra deal with her insecurities
about daycare and develop a positive attitude toward the experience. The overall attitude
of the show is very positive, giving the viewer a sense that daycare can be fun.
These are just a few examples of Nickelodeon’s responsible efforts to educate and
entertain children while existing in a profit- driven environment. If Nickelodeon can
devote large portions of its programming to children’s television, then certainly DTV
broadcasters can find time on one of their channels to do the same. There is an obvious
market for quality children’s television, and digital technology will allow broadcasters to
serve the needs of children without sacrificing valuable air time. Additionally, many
digital channels will be commercial free, allowing parents to choose these channels over
those that do air commercials.
38
Conclusion:
It is easy to justify restrictions on freedom of speech when the interests of
children are involved. However, regulations should only exist when there is an obvious
need. The deregulation of television broadcasting during the 1980’s created a need in
the 1990’s for the Children’s Television Act of 1990. But new technology brings with it
the opportunity to cure past problems and learn from our mistakes. Digital television is
going to do great things for children’s programming. Non- digital networks, such as
Nickelodeon, have already noticed the demand for and profit potential of quality
children’s television.
Digital television has made the restrictions imposed by the Act unnecessary.
Licensees are now equipped to meet the demands of parents and educators without
threatening the stability of a network’s finances. As long as the market for quality
children’s television exists, there will be programming available on digital television.
Naturally, until all children have access to DTV, the Act should remain in effect for
non- digital licensees. But as we move toward this new technology, we should embrace
what digital television allows us: freedom fi- om the restrictions of the past.
39
TO: William E. Kennard, Chairman- FCC
FROM: Natalya L. Sowers
cc: Professor Glenn H. Reynolds
DATE: March 11, 2000
RE: Mandatory Public Interest Obligations Of DTV
Broadcasters
INTRODUCTION AND BACKGROUND
Dear Chairman Kennard:
On January 26, 2000, the Federal Communications
Commission published a notice of proposed rulemaking
regarding the public interest obligations on the
broadcasters as they adopt digital transmission technology.
Proposed Rules, 47 Fed. Reg. 73 (Jan. 26, 2000). The
Commission noted that for seventy years, since the
Communication Act of 1934, "broadcasters have been required
. . . to serve the 'public interest, convenience, and
necessity. '" The Commission reaffirmed that digital TV
broadcasters must comply with these existing public
interest obligations.
The Commission is considering, however, to adopt new
public interest rules that would affect digital television
only. These new rules would be adopted in addition to the
1
--.- "---
40
already existing public interest standards applicable to
digital TV broadcasters. The Commission seems to be of
the opinion that these additional rules are justified by
the new opportunities that the digital TV broadcasters will
receive in the future.
I am writing in opposition to these new additional
public interest standards. First, these additional rules
are unwarranted in view of the uncertainties that surround
the digital TV technology. Second, these rules would not
serve any public interest, while unnecessarily burdening
broadcasters.
DISCUSSION
Under the Communications Act of 1934, broadcasters
must comply with a number of "affirmative public interest
programming and service obligations." The Commission
ensures this compliance by approving or transferring
broadcast licenses only when it "first find[ s] that doing
so will serve the public interest." As a part of their
public interest service, broadcasters must cover issues
"facing their communities," air "children's educational and
informational programming," and comply with the political
broadcasting requirements. The statutory political
broadcasting requirements, for example, concern such issues
2
41
as "equal opportunities, charges for political advertising,
and reasonable access for federal candidates." Moreover,
broadcasters are "prohibited from airing programming that
is obscene, and [are] restricted from airing programming
that is 'indecent' during certain times of the day."
Throughout the years since the Communications Act was
passed, the Commission has been satisfied with this set of
standards for the analog TV broadcasters and found them
sufficient to ensure that broadcasters act as ‘public
trustees" and "serve public interest." I believe that the
same set of public requirement standards should apply to
the digital TV broadcasters and that the Commission should
not burden DTV broadcasters with any new additional public
interest rules.
Uncertainties Facing Digital TV Broadcasters
No one denies that digital TV broadcasters, just as
analog TV broadcasters, should strive to serve public
interest. It is not at all clear, however, that there
should be adopted an additional set of mandatory public
interest requirements specifically and exclusively for
digital TV broadcasters.
One of the proposals in this regard is that of the
Advisory Committee that recommended in its report that
3
42
"[ tlhe FCC . . . adopt a set of mandatory minimum public
interest requirements for digital broadcasters that would
not impose an undue burden on digital broadcast stations,
[and that] should apply to areas generally accepted as
important universal responsibilities for broadcasters."
There are several problems with this proposal.
First, it "ask[ s] broadcasters to take a pledge to do
something that they are already doing." l Second, and most
importantly, it ignores the uncertainties that surround the
digital services.
One of the uncertainties that the digital TV
broadcasters face is what will be their market. This
market can certainly be affected by the high prices of the
DTV sets2 and the ease or difficulty with which those sets
will be compatible with other consumer electronics, such as
VCRs, DVDs, and camcorders. 3
' Paige Albiniak, Gore Plan to Move Forward, BROADCASTING &
CABLE, Nov. 16, 1998, at 24.
2 "Currently, a monitor capable of showing a full high-
definition picture . . . may cost from $3,000 to $10,000,
and set- top boxes that receive DTV broadcasts start at
about $700." New Motorola Module technology Puts DTV on
Standard Television; TVs, VCRs and Set- Top Boxes with Motorola's Affordable M- DTV Technology Puts DTV in Front of
Consumers. BUSINESS WIRE, Oct. 4, 1999, at 57.
3 None of these devices are compatible with the DTV sets
presently.
4
43
The DTV market will also be affected by whether
stations in a given market will be broadcasting digital
signals. In its turn, the local stations' willingness to
convert to DTV will be affected by the cost of this change4
and by the advertisers' and consumers' reaction to the new
digital technology.
It is thus unclear what will be the digital
technology's place in the communications market. Because of
the uncertainty of the success of the digital technology,
it is hard to define exactly what public interests this new
technology will affect, and, as a result, what public
interests must be protected. After all, such standards may
prove to be unworkable, if not obsolete, when the
technology finally reaches the public.
Burdens and Challenges Surrounding Digital TV
Attempts to define the "universal responsibilities"
for DTV broadcasters appear misplaced especially in light
of the technical difficulties with which these broadcasters
are currently struggling. The Commission should pay closer
attention to the numerous technical issues unresolved
instead of simply pressuring for a faster industry action
4 TVNetworks Differ On Digital, L. A. TIMES, Apr. 3, 1998, at D4.
5
44
on "standards for a device that will allow TV sets to
receive a high- definition picture." 5 The Commission had
stated that it wants the digital standards debate to focus
on consumers, 6 but at the same time, it has unrealistically
urged the industry for an aggressive timetable for
completing the standard. In fact, the Commission is
concerned with the content of the media that is not so sure
to reach the American homes.
First, there is the equipment problem: consumer video
equipment like VCRs, camcorders, DVDs, and satellite TV
dishes that do not work with the new digital TV sets. 7
Second, even the development of the wire connecting the
cable system's digital inputs to the digital TV set is not
yet complete, so the consumers will not be able to receive
high definition digital broadcasts at all. ' In fact, the
designated transmission standard cannot be received based
' Chris McConnell & Price Colman, FCC Tackles Digital Must-
Carry, BROADCASTING & CABLE, July 13, 1998, at 8.
6 Must Carry, BROADCAST ENGINEERING, Sept. 17, 1998.
7 Transition to HDTV: Hearing Before the Senate Comm. on Commerce, Science and Transp., 110 Gong. (1998) (statement
of John McCain, Senator).
' Id.
6
-.-_-
45
on currently available technology. g It is unclear,
therefore, why new and different standards should be
imposed if the picture that the consumers will get on their
expensive DTV sets will be "no different than what they
would have gotten on their old TV set." l'
These technical problems certainly present significant
obstacles to the success of the new digital technology and
are quite worthy of being addressed by the Commission
before it focuses exclusively on the content of the new
media. If the Commission does not choose to address these
technical difficulties, it should, at least, not strive to
slow the future development and implementation of the new
digital technology by the imposition of the new mandatory
standards.
CONCLUSION
While it is quite clear that the digital franchise
will be "infinitely more flexible and more valuable than
its analog counterpart," ll this alone does not justify
' Sinclair Files Petition With the FCC Modification To Digital Television Rules Urged, PR NEWSWIRE, Oct. 11, 1999,
at 3550.
lo Id.
I1 David Hatch, Wiley: Take it Easy on New Digital Rules,
ELECTRONIC MEDIA, July 21, 1997, at 59.
7
46
imposition of the standards by the Commission that would
not resolve the significant technical, programming and
economic problems facing the broadcasters' transition to
digital, but will only burden them with more rules of the
kind with which they already comply. The Commission should
be wary of the negative effect of these additional
duplicative rules on the development and implementation of
digital technology. Perhaps, the Commission should
continue its support of such industry initiatives as those
of the Advanced Television Systems Committee (ATSC). 12
American public and development of standards for digital
television are certain to benefit from the ATSC's efforts
to "develop[] digital television implementation strategies
and [to] create[] a certification program for television
sets, computers, and other consumer video devices." 13
I2 Bitstream Joins Advanced Television Systems Committee; Bitstream Will Support the Organization's Mission To
Enhance the Functionality of the Digital Television Standard, BUSINESS WIRE, July 13, 1999, at 1238.
l3 Id.
8
47
To: Federal Communications Commission (FCC)
From: Valorri Jones
cc: Professor Glenn H. Reynolds
Date: March 16, 2000
Re: Comments on Public Interest Obligations of Television Broadcast Licensees
INTRODUCTION AND BACKGROUND
In the early 1990’s, the FCC began to take steps away from an analog broadcasting
systems to a fully digital system. The Commission adopted rules that required stations to build
new digital facilities. The FCC gave broadcasters a timeline based on the size of each market
and required that the top four commercial networks in the top ten markets have digital facilities
constructed prior to May 1, 1999. The FCC gave all other stations until May 1,2002. Currently
most stations are required to simulcast in both analog and digital formats. The concern that
consumers will not invest in digital television is a valid one.
I wish to respond to your recent notice of proposed rulemaking on how broadcasters can
best serve the public interest as they transition to digital transmission technology. I have read the
“The Gore Commission Report on Public Interest Obligations of Digital Broadcasters,” and
similar reports on this topic. I am aware that the FCC is in need of comments and proposals on
how to best serve the public interest.
The transition from analog to digital broadcasting raises several concerns and questions.
1) What standards will govern digital television, and who will determine them? 2) More
specifically, what reasons can the FCC and/ or digital broadcasters give the public as to how
48
digital communication will better serve them than analog? 3) What are the negative
consequences (expected or unexpected) to changing to digital technology?
WHAT STANDARDS WILL GOVERN DIGITAL TELEVISION, AND WHO
WILL DETERMINE THEM?
Currently public concern with television is chiefly centered around censorship.
Government control over what viewers will and will not see on television has been the
subject of much controversy. Too much government control in this new era of
communication could be counterproductive to its potential benefits. I agree with the
Gore report that the National Association of Broadcasters (NAB) should determine the
standards for digital technology and the transition to digital technology. As I initially
experienced in trying to obtain knowledge on this subject, it would be taxing on the
public to determine these standards because of the difficulty in understanding the subject
matter. The NAB is probably the expert in this field and is undoubtedly the most
qualified group to set such standards for this new form of communication.
However, I am aware that up to 400 broadcasters do not belong to the NAB which
raises concerns about how these companies will be affected by standards drafted by the
NAB. Accommodations must be made for these broadcasters, especially if they are
forced to compete with other digital television broadcasters. These broadcasters should
have some voice in creating the standards by which they will ultimately be governed. I
suggest the NAB invite representatives from those companies that are not members to
join in this decision making process. Full support from all broadcasters in the standard
2
,” . ._. .__-. l-----_-. l_. ----____~~_. ._ -..
49
setting for digital television could foster a positive public interest for digital television.
This support could also minimize government interference in the process.
HOW CAN DIGITAL COMMUNICATIONS BETTER SERVE THE PUBLIC
THAN ANALOG?
Currently broadcast stations have several public interest obligations. They must
provide service to local needs, or provide programming that will better serve their
communities. Also the Children’s Television Act of 1990 requires that broadcasters
establish children’s educational programming for a minimum number of hours. Political
broadcasting is another obligation that serves the public interest. Broadcasters are
required to provide access to political candidates and their opponents for political
debates. Closed captioning serves the blind or those individuals visually impaired, and
disaster warnings help those residing in areas that could be hit by storms. Furthermore,
the FCC requires that broadcasters provide equal employment opportunities to applicants
and employees.
With such current public interest obligations in place, the public should at the
very least be afforded the opportunity to receive such benefits from digital programming.
Thus, digital television should offer more benefits than what the public is already
receiving from analog television. Offering more channels is insufficient. Those
individuals living in certain local, urban and mountain areas should benefit more from
such a costly transition. If low power televisions that typically provide for these areas are
unable to switch to digital programming, then those living in such areas gain nothing. If
50
digital television becomes the accepted form of broadcasting, low power televisions
would be forced into an unfair competition with digital television. Also, this competition
could cause an economic burden of attempting to switch to digital programming, thus
forcing their communities to do the same.
Digital programming offers multiple programming, datacasting, and other
services, yet it is still unclear what all of these services mean to the public. Internet
access to this information is a start, but the public needs to understand what digital
programming is exactly. Public opinion polls could give broadcasters the necessary
insight into the public mind on this issue. Television advertising could help, as would
major and local newspapers advertisements. The Advisory Committee’s suggestion that
digital broadcasters disclose their public interest programming and activities is also a
sufficient way to increase public knowledge about digital television and what it has to
offer.
WHAT ARE THE NEGATIVE CONSEQUENCES TO SWITCHING TO
DIGITAL TECHNOLOGY?
Of all the information I have read on the subject, I have been unable to find
negative information that would impact the public. I have learned much about how
digital technology could negatively affect local broadcasters and low power television;
however, I am still unclear as to what the public concern should be over this technology.
Public concerns over such mediums tend to center- around expenses and what their
children could be exposed to.
4
_I -. . . ._ .-^ .,_- _ .-. ._ ..“.. “-_ _^. .., . . . -“__~ -.-. “.-- l-.--_.. -“*..^-- ~_-~
51
The first of these concerns is expenses. Will digital technology simply drain the
public’s wallet? As it stands now, the majority of Americans have cable television. In
some areas having a television that was not “cable ready” is often useless to individuals.
Thus, those persons are forced to purchase a particular type of television, and forced to
pay connection fees, and the monthly service fees for cable. Digital television prices
range from $5,000 to $16,000. Cost with added taxes on receiving digital technology
plays a major concern. Most Americans have not forgotten how just a few years ago the
FCC imposed a new tax on all communication services (telephone, cell, phones, pagers,
etc.). Therefore, digital television as it stands is not affordable for the average working
class American. This problem would prevent the public from spending such a vast
amount of money on a digital system; thus making it impossible for them to receive the
potential benefits that digital television may have to offer.
Financial concerns probably are less important than the concern for America’s
children. The debate over what television currently exposes to children is endless. The
current standards governing children’s programming is satisfactory for analog television.
However, it is not clear that these standards will be sufficient for digital television. The
same concerns will likely bleed into digital programming. The Children’s Television Act
of 1990 requires that broadcasters establish a minimum number of hours to children’s
educational programming. Since digital television offers more channels than does
analog, it should be required to offer more hours to children’s programming. However,
even if the digital television dedicates more hours to programs for adolescents, other
programs children could be exposed to presents an entirely different problem.
5
52
Given the number of new channels offered by digital television, children are more
likely to be exposed to nudity, sex, and violence. The violence that we see everyday in
the media reveals that children are getting mixed messages from different mediums.
Some are receiving it from their peers, families, and even in school. But it goes without
argument that television presents probably the most significant source of these problems.
It is important at this early stage that digital broadcasters begin to put procedures in place
to avoid these problems. They should offer policy creating parental control measures to
combat some of these issues. Therefore, I agree that a public file should contain
information on what programming has closed captioning and video description. This file
could become a significant source for those parents concerned about bringing digital
television into their homes.
CONCLUSION
The ultimate dilemma for the FCC is serving the public. The actual transition
from analog to digital communications technologically has never been an issue. The
FCC has done an excellent job at attempting to make this transition a smooth one for
most broadcasters, especially the major companies. However, broadcasters acted
somewhat prematurely in deciding on making the change without thinking about pubic
reaction to it. With present public interest obligations in place, broadcasters should have
been more alert to public needs concerning digital programming. Offering the same
incentives as analog televisions simply will not suffice as a legitimate reason why the
public should invest in digital television. It must offer more benefits than does analog
television.
6
II _ _ ._ ..-. . . . I-~ “_. ,,“, .----- __“_. .,“.--“.-
53
People with disabilities should be made to feel that digital programming could
make their already challenging lives easier. Parents of adolescent children should not be
concerned that digital programming will contribute to the existing violence and drug use
among their children. Also, broadcasters should find ways to off set the economic burden
of purchasing digital television for homes. Digital television could prove to be one of the
greatest technological advances known to America. However, the FCC must find ways
to serve the public’s interest as well.
REFERENCES
1) http: Nwww. digitaltelevision. com/ law 1198n. shml
2) http: Nwww. digitaltelevison. comIlaw 199p. shtml
7
--- “, . .- ll.-“--... l. --._..
54
To: biagalie Roman Salas, Secretary- FCC
Fmm: Amanda Renea Cox MAR 2 3 2000
CC: Professor Glenn H. Reynolds
Date: 3- 1 O- 00
Re: Comments on Proposed Regulations Co nceming Public Interest Obligations of
Television Broadcast Licensees.
--~ -~ ~.~
Dear Secretary Salas,
In response to the FCC’s request for public comments, 65 Fed. Reg. 4211, w
Docket No. 99- 360; FCC 99- 3901 I would like to express my views as a law student,
who has always been and will continue to be an American affected by television and the
power of the media As I understand it, the FCC would like comments on how
broadcasters can best serve the public interest as they change to digital transmission
technology. Several issues within the notice concerned me a great deal.. .specifically the
disclosure obligations of broadcasters, how broadcasters can utilize the Internet to be
more responsive to the needs of the public, and enhancing political discourse.
Introduction and Background
It is evident that the transition to digital television will create major changes and
numerous new issues that will have to be agreed upon in order to ensure that broadcasters
meet their goal of serving the public. Since it has been required by statute that
broadcasters serve the public interest, convenience, and necessity, it is only logical to
ensure that they continue to do so whatever their means of transmission may be.
However, it is also easy to recognize that as society and technology continually change, it
55
Amanda chx- 3/ 10/ 00
becon~ more diflkult to decide how bro& asters can best carry out this statutory
mandate.
As 811 dogy, I ask you to consider for a moment, the Constitution of the United
States Tberearethoseamonguswhobelievethatitshouldbeinterpretedjustasitwas
writteq while others like myself, believe that we must interpret it dBerently as times and
circumstances change. Situations evolve daily which our forefathers could never have
predicted nor foreseen Therefore, it seems only logical that we must read the intentions
and meanings behind the constitution in a way that will allow us to apply it to today’s
changing issues, as we deem appropriate. I see the transition to DTV in much the same
way. This is a change that will have different effects and repercussions and must be
treated as such. Simply allowing licensees to continue following the current public
interest rules without modification will firll far short of meeting the public interest goals
that broadcasters are expected to meet.
Disclosure Obligations Should be Stricter
Guidelines and requirements in our daily lives are set for a reason. While many
individuals may consider themselves disciplined and task- oriented, many also will admit
that without deadlines, it is quite likely, that at times, a project would not be completed.
Likewise, it seems only logical that by requiring broadcasters to disclose information
regarding pubic interest progr amming and activities, the broadcasters woukl be more
inclined to meet what is expected of them Requiring broadcasters to disclose such
information on a quarterly basis does not seem to be an overly burdensome requirement.
It seems only &ir that the citizens who “own the air- ways” should have the right to know
I .-- ... I . ..-- ._.--. “._ ___.-- xII__ ..__. .-- --..-. *__ “._. .~“-“- ._.------
56
what broadcasters in their areas are doing. Additionally, in a period of transition, hm
analog to digitd, it makes sense that not only the FCC, but citizens as well, should have
tbeabiitomonitorbroadc& e& actionsandtheprogramming provided. Tightening
thcnrlesabitto~ ethatbroadcastersate” livingup” tottaeiremlortfsedealis~
fkom unfkir, especially considering the major advances that they will be obtai& g from
DTV.
How Broadcasters Can Use the Internet to be More Resr> onsive to Public Needs
In addition to heightened disclosure obligations, consider this for a moment.. .
wouldn’t it be wonder& l to simply log on to the Internet and make suggestions to the *.
broadcasters in your area about the types of programming you wished to s& i- p the local
events you wished to see covered? Wouldn’t it be even more amazing to think that those
stations would actually take such comments and suggestions into consideration? How
could broadcasters serve the community better than to listen directly to the comments and
suggestions made by its community’s citizens? A study conducted by the Media Access
Project and the Benton Foundation found that “stations devoted only one third of one
percent of their air- time to local public affairs.” (www. current. org/ tech/ tech807g. htmI) If
that is truly the case, are those stations actually donating a significant portion of their
time to the community and public interest? Wouldn’t it be interest& g to find out exactly
how those stations are meeting the needs of the public interest ifit is clear that they are
not doing so by airing local public affairs? By having stations disclose how they meet
such requirements over the Internet, no question would remain. Citizens would have
access to the information, and in addition, could make suggestions concern&
57
Amanda chx- 3/ 10/ 00
.- .
progmmming that they would like to see broadcast. The suggestion in the notice
concerning “forums in which the public could post comments and engage in an ongoing
dialogueaboutthebroadcaster’sprogramming” isanabsolute~ sslperbicgea, aad
certaidy one that many parents would waste no time in utilizing. For mstance those
parents who feel that stations are broadcasting too many programs that include sex and
violence would then have a forum which would allow them to express their concerns and
suggestions. People for Better TV listed the number of acts of violence that an 18- year-
old will have witnessed on TV at 200,000. (www bettertv. orn/ factsheet. htm) Why not Sk
use this enormous transition t+ om analog to digital and the issues surrounding it as the
opportunity to decide as a nation what should be done about the televised violence and
sex that is detested by so many Americans? Could DTV and the technological advances
not be used to solve some of those problems, and could suggestions for solutions to those
problems be discussed via the Internet? If DTV will actually Yke up parts of the
broadcast spectrum,” (www. fcc. gov/ mmb/ prd/ dtv/# 4) why couldn’t programming
containing sex and violence simply be separated from the programming that does not?
In addition, if viewers did participate in forums concerning programming, and a
station had a general consensus of the programmin g the majority of its viewers wished to
see, how could it go wrong by broadcasting much of that programming?
Enhancing Political Discourse
Within the notice there was a question raised (seeking comment) as to what steps the
Commission can take to promote vohmtary efforts to enhance political debate and the
information the public receives concernin g candidates. One possible step would be that
58
AnIan& cox- 3/ 10/ 00
the Commission stop exempting efforts like those made in the last six weeks of the 1996
presidential campaign The notice stated that the Commission exempted those e& rts
fbm the equal opportunity requirements becaux they wer8 viewed as an on& e- spot
coverage of a bona fide news event. Rather than completely exempt such attempts by
broadcasters to meet their public interest requirements, could the Commission not reward
them in some way for offering free airtime? Furthermore, although the majority of the
Committee seemed to favor requiring broadcasters to provide some airtime for national
and local candidates, just the thought of it is enough to run shivers down an American’s
spine. If broadcasters are required to broadcast a set amount of time to candidates, what
will they be required to broadcast next? What if a station or network prefers not to
become involved in airing political campaigns or advertisements, but decides to meet the
public interest requirement by other means? What if those means are more applicable to
that station or network’s viewers than is the campaign coverage? Television has longed
been viewed by many (pun intended) as part of America’s feeling of freedom. How t? e. e
would you feel as a broadcaster, if you were required to air certain amounts of political
coverage? The chances are that the major political campaigns will always have adequate
airtime to ensure that Americans are abreast of the issues. Local campaigns may be
different indeed, and receive less coverage, but if we had forums (say, over the Internet,
as suggested earlier) in which citizens could voice their opinions concerning the amount
of coverage that they wish local politics or public affairs to receive, it seems unnecessary
to have requirements imposed on broadcasters in regard to political coverage. One
might wonder what would follow.. . saluting that Committee perhaps - while walking a
Hitler& h march? Allow the bro& asters to chose how much coverage of political
5
59
Amanda cox- 3/ 10/ 00
txmpigm they wish to pmvide. Perhaps offer incentives to provide free air time, and
reward such e& rt. s rather than exempt them completely. Once one major network
decides to hcus on the political campaign, it would seem likely that its close competitors
woukl follow, at kast somewhat. Let’s not ever force our network broadcasters to cover
politics.
Conchsion
DTV seems new to most of us. It will change many aspects of the televised
programming and affect not only broadcasters but also the little couch potatoes who so
religiously tune in to the set. It only makes sense that as a new form of television enters
our homes, that a new set of rules accompanies it. Perhaps not rules for the every day
soap opera addict, but for the network that broadcasts all of the shows we enjoy. DTV
will provide many opportunities that we have not previously been offered, and to require
DTV to simply abide by the same rules and regulations that have been in place for
television as we have previously known it seems somewhat of an inadequate policing
system. New situations are bound to arise, and we may not End an answer in such
instances simply by referring to the old system.
As a law student, I am aware that my knowledge of the FCC rules and regulations is
somewhat limited, but I am also aware of the power of television. DTV without the
appropriate guidance and regulation could become the kind of monster that gets “out of
hand” much more quickly than we could imagine. I feel that by making the citizens
aware of the changes that will be occurring, and listening to the responses that those
citizens have will make the transition to D’I’V occur more smoothly. I know very few
people who do not own a television. It is part of our independence, yet also a huge part
6
60
Amanila cox3/ 1 woo
OfOur aepenaenCe. We depend on it fbr news coverage, for the latest issues, for weather
iafommtioo, and yes, for entertainment. When agencies, committees, and commissions
that the average citizen knows nothing about start making decisions that afkct the
manner in which that television fbnctions, the average Joe may become tightened. By
setting rules to govern how, what, and when DTV will be, those fkrs can be diminished.
61
To: William E. Kennard, Chairman - FCC
From: Mary Taylor Gallagher
RECEIVED
MAR 23 2000
mI# AKm
cc: Professor Glenn H. Reynolds
Date: 03/ l 7100
Re: Comments on Proposed Rulemaking for Digital Transmission Technology MM Docket No. 99- 360
Dear Secretary Kennard,
In response to the FCC’s request for comments on how broadcasters can best
serve the public interest as they transition to digital transmission technology, 64 Fed.
Reg. 4211, (January 26, 2000) I want to communicate my views as a law student and
as a member of the public who, collectively, has given television broadcasters free use
of our airspace. I am writing to encourage the FCC to establish specific guidelines
regarding the public interest obligations of digital television broadcasters. Additionally, I
strongly urge the FCC to hold public hearings regarding these issues. After all, who is
more qualified to determine the public interest responsibilities of digital television
broadcasters than the public who not only watches television programs but also owns
the airwaves over which those very programs are broadcast?
Introduction and Background
On February 25, 2000, the Consumer Electronics Association (CEA) released
figures indicating that for the fourth consecutive month factory- to- dealer sales of digital
62
televisions (DTV) exceeded the 20,000 unit mark. ’ Moreover, since DTV’s introduction
into the market in August of 1998, 155,410 units have been sold. 2 CEA projections
indicate that by 2003 total DlV sales will be in excess of ten million units. Whether the
public is ready or not, it appears that DTV is here to stay.
Chances are that the majority of Americans are not fully aware of the potential
benefits and the possible pitfalls of digital television. A broadcaster’s ability to transmit
five or more channels, as opposed to the single analog channel currently used,
dramatically increases the amount of information that can be communicated to the
public. The resulting educational opportunities, improvements to community life and
political exposure are boundless. Unfortunately, the same connection with the Internet
that will allow television to become interactive might also expose television viewers to
specific marketing techniques and ploys.
In the Final Report of the Advisory Committee on Public Interest Obligations of
Digital Broadcasters, submitted December 1998, the Gore Commission noted, “[ t] he
foundation of the American system of broadcasting is that Congress placed the basic
trust and responsibility for all matters of broadcast to the public in the hands of the
station licensee.” A quick look at the development of television in the last sixty years
shows that broadcasters have not lived up their end of the bargain and that its time for
the public to demand more control over our airwaves. Television programs such as
“The Jerry Springer Show” and the “Howard Stern Show” are axiomatic of the direction
’ DTV Sales Start Off Strong in 2000 (visited Mar. 11, 2000)
http:// www. dtvweb. orcjnews/ press release. cfm.
2 Id.
2
.-. I ._ - - ._. _... ._. I_.~_ _. I..- l. l..-. ___.. .------ -.-
63
in which television is headed. Sex and violence are available on all channels at all
hours of the night. What indications do we, as the public, have to expect anything
different in the near future?
The proposal of Lowell W. Paxson, Chairman of Paxson Communications,
submitted to the FCC February 11, 2000, suggests that broadcasters voluntarily adopt a
Public Interest Code of Conduct for which they would receive such incentives as
renewal expectancy and mandatory carriage of the licensee’s digital signal. With all due
respect, Chairman Paxson seems to be forgetting that it is not the broadcasters who are
doing the public a favor, but rather the public is licensing our airwaves to them free of
charge. Congress has mandated that broadcasters’ programming be in the public
interest. While Chairman Paxson’s Code of Conduct certainly is noble, with the
exception of the specific time limits for politically centered programming during an
election cycle, it merely promises more of the same with no guidelines as how to fulfill
the goals.
Jeffrey Chester, executive director of the Center for Media Education (CME)
made an astute observation in a recent press release. “In 1996 broadcasters received
extremely valuable public property- worth as much as $70 billion - and paid nothing.
. .. giving them the equivalent of free beachfront property on the Information
Superhighway. The public deserves a dividend in return.“ 3 For more than half a
century broadcasters have in fact received the use of our airwaves for free and it is time
for the public to determine whether broadcasters have lived up to their end of the
bargain.
3 Digital Broadcasting Must Serve Public Merest (visited March 9, 2000)
http:// www. cme. or~/ press/ 991215pr. html.
3
64
It is incumbent upon the FCC to take a more hands on approach with respect to
enforcing the congressionally mandated public interest obligations or risk relinquishing
control of the airwaves to the digital broadcasters. Public interest obligations should
attach to each program stream offered by the licensee. According to Section 336( d) of
the 1996 Telecommunications Act:
Nothing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and
necessity. In the Commission’s review of any application for renewal of a
broadcast license for a television station that provides ancillary or supplementary
services, the television licensee shall establish that all of ifs program services on
the existing or advanced television spectrum are in the public interest. (emphasis
added) 4
The statutory language specifically requires that all of a broadcaster’s program
services be in the public interest. With the transition to digital broadcasting and the
opportunity to broadcast on five or more channels, broadcasters should be not be
allowed to fulfill their CTA requirements by utilizing only one channel. Each and every
channel must be used to serve the public interest. Therefore, it is important for the FCC
to act promptly to clarify the duties of the digital broadcasters in this area.
It only seems logical that as the number of channels provided to a broadcaster
increase that the public interest obligations should increase as well. As such, I ask the
FCC to begin proposed rulemaking and hold public hearings in two specific areas:
Children’s Welfare and Free Airtime for Political Candidates.
4 47 U. S. C. 336( d).
4
-..
65
Children’s Welfare
Digital television broadcasters must be required to comply with the Children’s by
the FCC in 1996, in order to receive or renew their license. 5 Television Act (CTA),
passed in 1990 and strengthened by new rules established
On average, children ages’ 3- 17 watch more than three hours of television per
day. Much of what they see on television is not positive. In a study published in the
January 1999 issue of Pediatrics, the peer- reviewed scientific journal of the American
Academy of Pediatrics (AAP), the authors noted the following:
. Young people view an estimated 10,000 violent acts each year. A recent
National Television Violence Study examined nearly 10,000 hours of television programming over a three- year period and found that 61 percent contained
violence, with children’s programming being the most violent. . Each year, teenagers view nearly 15,000 sexual references, innuendoes,
and jokes of which less than 170 will deal with abstinence, birth control, sexually transmitted diseases, or pregnancy. The so- called family hour of prime time
television (8 to 9 p. m.) contains more than eight sexual incidents per hour, more than four times as much as in 1976.
Alcohol, tobacco, or illicit drugs are present in 70 percent of prime time ietwork dramatic programs, 38 out of 40 top- grossing movies, and half of all
music videos. For every “just say no” or “know when to say when” public service announcement, teens will view 25 to 50 beer and wine advertisements. Tobacco
manufacturers spend $6 billion per year, and alcohol manufacturers $2 billion per year in all media, trying to entice young people into “just saying yes.‘ 16
In addition, a study done by the FCC’s Children’s Task Force merely confirmed
what most researchers and educators have previously suggested: educational
programming positively affects children’s development, particularly the development of
those who have not yet learned to read. 7 Shows such as “Mister Rogers
5 47 U. S. C. 99 303( a), 303( b).
6 Article Underscores Media impact on Children and Adolescents (visited March 16, 2000)
http:// www. aap. or~/ advocacv/ akhives. html.
’ Federal Communications Commission, Television Programming for Children: A Report of the Children’s
Task Force, Vol. I, at 20 (1979).
5
. .I-. ..-.. ._ _ .” I . - --_- .--_-..- ~-
66
Neighborhood” and “Sesame Street” reinforce concepts learned in school while
presenting the information in a fun and appropriate manner.
Moreover, low income and minority children do not have equal access to
alternative sources of education. Children who are unable to attend pre- school often
find themselves behind on the first day of grammar school. A 1989 Senate Report
indicated not only that television reached ninety- eight percent of all homes, but that it
also reached ninety percent of the homes with an annual income below $5,000 dollars. ’
Developing programs in compliance with the CTA is crucial to the furtherance of literacy
in our country as many low- income children are first exposed to the alphabet on shows
such as “Sesame Street.” In order for our children to have an equal start in life, digital
broadcasters must play their part to establish and promote educational programs
designed specifically to meet their needs.
Current FCC guidelines developed to clarify broadcasters’ obligations under the
CTA state that TV stations must air core educational programming. To qualify, a
program must serve the educational and information needs of children aged 16 and
under as a significant purpose and must be a regularly scheduled program lasting at
least thirty minutes per day (three hours per week) and aired between the hours of 7: 00
a. m. and IO: 00 p. m. My hope is that the FCC would consider increasing the required
broadcasting time. With so many channels available to broadcasters it would not be an
undue burden for them to air more children’s programming over our airwaves. In a
national survey commissioned by the Project on Media Ownership eighty percent of
* S. Rep. No. 797, 101” Cong., 1” Sess. 4 (1989) (Senate Report accompanying the National Endowment
for Children’s Educational Television Act) at 12.
6
67
those polled favored “requiring broadcasters to meet certain public obligations like more
children’s educational programming” in exchange for free use of DTV channels. g
While some, including Chairman Paxson, argue that extra programs should be
aired voluntarily, advertisers are less likely to buy ad space during children’s
programming due to a decreased target audience and the low numbers of actual
consumers who view the program. Therefore, broadcasters will have little incentive to
air large amounts of educational programming because they will be at a competitive
disadvantage compared to those who choose only to meet the current minimum
requirements.
Additionally, I urge the FCC to take a closer look at the programs currently
permitted to satisfy the CTA and consider altering the definition of core programming so
that the program must have as its “primary purpose” the educational and informational
needs of children. What’s more, it would behoove the FCC to set forth specific
examples of programs that fit the “educational and informational” needs of children. As
I understand it, under the current definition used by analog broadcasters, programs
such as “The Mighty Morphin Power Rangers” qualify as educational and informational
programming. While this show may be entertaining, I fail to see how it compares with a
program such as “Reading Rainbow.” Perhaps broadcasters could satisfy the public
interest needs of the local community along with those of children by visiting local
historic sites or taking a trip to the zoo or nature conservatory. One such program could
be done in the same format as “career day” at school where each week the show goes
to a different job site to see what a fireman or a park ranger does each day. Not every
program has to teach the alphabet to be educational. However, I do believe that
’ Poll: 8 in IO say commercial broadcasters should aid public TV (visited March 16, 2000)
7
. _ ._ _ _ _ ____ ” ..I I _ __.. _---__ _I .I .-. ___~.__ .-” -,.- ___----.--- --
68
children deserve more than cartoon programming. I recommend that the FCC to take
seriously the requests of the Center for Media and Education and develop a
comprehensive plan for the expansion of mandatory children’s educational
programming.
Finally, in conjunction with children’s programming, I propose that the FCC
enhance the public disclosure requirements for broadcasters. In addition to making a
quarterly public filing, broadcasters should place all that information on a web page so
that the public will not only have easier access but will also have the chance to provide
invaluable feedback. The development of interactive web sites will also allow the
broadcasters to keep closer tabs on the needs of the local community and provide a
public forum for programming discussions. Along those same lines, I ask that the FCC
reconsider the ascertainment guidelines repealed in the 1980’s as they set forth specific
standards for broadcasters on consulting with various community leaders and
identifying and addressing community needs.
Enhance Political Discourse
As the presidential election year heats up, the need for effective and
informational political programming becomes more apparent. One simply has to tune in
to an episode of “David Letterman” or “Jay Leno” to realize that a vast segment of the
population is dealing in serious misinformation. Returning once again to Chairman
Paxson’s proposal, I support his suggestion that television stations provide five minutes
per night, between the hours of 500 p. m. and 1 I: 35 p. m., in the thirty days prior to an
election for “political discourse and for candidates to reach the voters.” The transition to
digital broadcasting presents a wonderful opportunity to expand political coverage and
8
_I-- .-.. ll “_ ” .,“.. l”.- l . .._ _-“..--.-.-----
69
allow candidates to get in touch with the voters. While I would like to see mandatory
time limits on children’s educational programming, with respect to enhanced political
discourse, I am only advocating for voluntary free airtime for candidates.
Democracy is the cornerstone of our country. In light of that fact, political
candidates should have the opportunity to have free use of the airwaves to
communicate directly with the public. Advertising costs for candidates have
skyrocketed in recent years. While politicians spent $98 million for TV time in 1972,
costs increased to $424 million in 1996 and are expected to top $600 million in 2000.10
Moreover, the public has a deep- seeded interest in gaining full exposure to the
platforms of each candidate. However, the FCC should limit its involvement in the
debate over free airtime to asking that stations voluntarily observe this guideline. Like
Commissioner Furchtgott- Roth, I question the FCC’s authority to regulate the electoral
process without legislation passed by Congress. Moreover, a recent poll of Super
Tuesday voters conducted by Witthlin Worldwide showed that while 34% support free
time mandates, 54% oppose the mandates with 12% undecided.” Prior to initiating the
rulemaking process regarding required free airtime, the FCC should seriously examine
whether they have the authority, both Constitutionally and under their operating statute,
to alter the electoral process. Given the results of the Super Tuesday poll, the FCC
should also hold public hearings to find out if the American people support them in
requiring broadcasters to give candidates free airtime.
Additionally, I agree with Chairman Paxson’s suggestion that the stations be able
to choose the candidates and the races. Forcing broadcasters to give all candidates
lo Is five Minutes Too Much To Ask?, CHICAGO TRIBUNE (Feb. 17, 2000), 2000 WL 11966241.
” Super Tuesday Voters Satisfied with Local Radio/ TV Election Coverage (visited March 14, 2000)
http:// www. nab. orn/ newsroom. html.
9
70
free airtime raises serious First Amendment issues as the FCC would in effect be
regulating the content of the programs. While I do have some concern that not all
stations will provide equal air- time to the candidates and will therefore provide skewed
coverage, stations should nonetheless be allowed to determine, in their professional
judgment, which races and candidates are news worthy. Requiring broadcasters to give
free air time to any individual claiming to be a candidate could open a veritable
Pandora’s box with “candidates” crawling out of the woodwork to receive free TV time.
Although I think that it is important for the stations to cover federal, state and local races
instead of focusing on just one area, it should be up to the broadcasters to determine
how best to serve their markets.
Conclusion
The FCC needs to act quickly to determine whether digital broadcasters must
abide by any additional public interest obligations in exchange for free use of the public
airwaves. Therefore, it is imperative that the FCC hold public hearings to examine the
need for proposed rulemaking before the time comes to examine license renewal
applications. Broadcasters deserve to know what the public and the FCC expects of
them. Thank you for your consideration.
Cordially,
Mary Taylor Gallagher
IO
- .I _,_ __-_. -_-.-“- -
71
Mm? 2 3 zuu( j Comment to Public Interest Obligations of Televis'
Broadcast Licensees 65 FR 4211( MM Docket No. 99- 360, FCC
99- 390)
My name is Amy Paul and I am currently a third year
law student at the University of Tennessee. I am writing to
comment on the issue of regulating digital television for
the educational benefit of children. Although I currently
have no children of my own, I have observed enough of my
relatives to know the tremendous impact that can be made on
a child's thinking and interaction with others through
television.
In seeking a license to broadcast from a governmental
agent a broadcaster is, in effect, agreeing to uphold
certain standards in programming and to serve the public
interest. l This is a great responsibility that no
broadcaster should take lightly. While I realize that
broadcasting is a business, and as such is primarily
concerned with making a profit2, I do not think the impact
which television has on our young people can be easily
dismissed or discounted. In 1960, the Commission itself
1 See Improving Children’s Television Programming: Hearings on H. R. 3216 Before the
Subcomm. On Telecommunications, Consumer Protection, and Finance of the House
Comm. on Enexy and Commerce, 99th Cong., 1st Sess. 3 (Oct. 25, 1985) (statement of
Representative Bryant).
-
72
realized that children's television was necessary to serve
the public interest. 3 This is probably because America has
become such a television- oriented society. As has been
noted,
Children spend an inordinate amount of time actively paying attention to television.
Television has enormous potential to educate and socialize our children in ways unlike any other
medium. Television, like the family, church, and school, has a powerful influential role in a
child's development, more time than they spend in the classroom, in social interaction with family
members, or in any other activity except sleep. Television also becomes firmly established in
children's lives before their first experience in formal education settings. 4
What messages we allow our children to see and make
available for our children to see can make a huge
difference in the way they see the world.
It is because of this that such a great burden is and
should be on our broadcasters. Publicly accessible
television is, for some children, a primary source of
education and entertainment. There are currently too few
freely accessible educational programs available for
children. I can off- hand think of only two stations that
currently serve any sort of educational purpose for our
2 R. LIEBERT, J. SPRAFKIN 8a E. DAVIDSON, THE EARLY WINDOW: EFFECTS OF
TELEVISION ON CHILDREN AND YOUTH, 16 (2nd ed. 1982).
3 Report and Statement of Policy Re: Programming, 20 P. & F. R. R. 1901 (1960), cited in
Children’s Television Report 8& Policy Statement, 50 F. C. C. 2d 1, 4 (1974).
4 Alison L. Thorburn, Regulating Television For the Sake of Children, 67 U. Det. L. Rev.
413 at 428 (Spring 1990).
.”
73
young viewers: PBS and Nickelodeon. These stations have
consistently tried to make available educational
programming for the younger audience. However, there is a
large portion of the viewing public that does not have
cable. That narrows down the educational options to only
one. That is simply not sufficient.
It is clear that, left to its own devices, the television
industry would like to ignore the need for educational
children's programming. 5 Children are not primary consumers
after all, especially very young children, and can
therefore not make their demands known by the use of their
pocketbooks. 6 Broadcasters respond to the type of
programming that makes them money; children's television is
not the largest moneymaker. As it has been demonstrated
time and again that when left alone television will not
respond to the needs of the young viewer, it then becomes
obvious that in order to serve the public interest
broadcasters must be required to make children's
educational programming available.
This need for educational children's programming can
be even better served for the community through the use of
5 See CHILDREN’S TELEVISION TASK FORCE, F. C. C., 1 TELEVISION PROGRAMMING
FOR CHILDREN: A REPORT OF THE CHILDREN’S TELEVISION TASK FORCE, 26- 45
(1979) (realizing the lack of financial incentives for commercial broadcasters concerning
children’s programming).
74
digital television. With its multicasting capability,
digital television can serve the interests of the children
with some of the available channels while leaving the
others for more "adult" programming or there is always the
option of setting aside small increments of prime child
viewing time on a vast number of channels in order to serve
the viewing public.
The public interest would also be greater served if a
few of the channels could be set aside for data
transmissions for schools, a small example would be analog
television's use of Channel One. Television is an
entertaining learning tool, one we need to take advantage
of for the benefit of our children. There are many
subjects that could be easily taught in this format if only
the opportunity would be made available. Of course, there
is always the risk of that opportunity going unused, but
that is no reason not to require the chance to use it in
the first place.
There are, of course, those who say that if there
truly was a demand for this type of children's programming
the industry would have met it by now so as not to
6 1980 Proposed Rulemaking, 75 F. C. C. 2d 138, 147 (1980) (recognizing broadcasters
lack economic incentives for children’s programming).
_ ,-_-_-----..---.. -l.. l-_.. x _-.- --
75
antagonize the viewing audience. 7 The parents of the
children we are so concerned about educating would have
voiced a public outcry to make broadcasters respond. That
argument is on its face persuading, but we need to look
behind it for a minute. Is it really a practical argument?
To some degree, admittedly, yes the logic is sound.
However, the children that public broadcasting would serve
the most by showing educational children's programs during
children's viewing times are those children whose parents
may: one, not care about what their children watch and who
will not direct their children to the more youth- oriented
programs; two, not have the economic power to purchase the
extra stations that might provide for more educational
programming even if they are concerned; or three, once
again not have the economic power to threaten broadcasters
with if their programming demands are not met.
When we rely on the market to dictate the programming
decisions, we are in essence letting those with the buying
power say what goes on the air. The poor citizens are not
well represented in that arena. Those viewers who do have
the "purse power" to sway broadcasting decisions will more
than likely be the same people who can afford to supplement
7 See Fowler 86 Brenner, A Marketplace Approach to Broadcast Regulation, 60 Tex. L.
Rev. 207, 210, 239 (1982).
76
the free channels with pay television or even videos when
public television does not meet their needs. Thus, there
is no public outcry because the needs of their children are
satisfied. I am not as concerned about those children as
much as I am about the underprivileged children whose
parents might not have the economic clout to make their
needs known. Of course, even in the homes of middle- and
upper- class families there is still the risk of the
television being the baby- sitter and primary educational
source for the children. Even for those homes there needs
to be a wider array of educational programming available.
It has long been the idea that there are some
instances where the government may step in and act as
parens patriae for the nation's children. This may very
well be one of the instances where that intervention is
needed. However, the regulations themselves mean nothing
without some way to back them up. I would suggest in this
instance allowing broadcasters a certain amount of time in
order to get their programming in compliance with the
regulation, perhaps even a five- year period. At the end of
that time, when their broadcasting license is up for
renewal, the FCC can then view the broadcasters programming
history to see if they have been in compliance. The
possible sanctions for non- compliance could be fines for
77
relatively small infractions, delayed license renewal with
the opportunity to still remedy the non- compliance for
slightly larger infractions, as well as larger fines and a
possible denial of license renewal for the egregious acts
of non- compliance. If the public can not or will not make
their needs known to the industry, then it is up to
government, ultimately the agencies, to be the voice that
needs to be heard.
In conclusion, I believe that there is a demonstrated
lack of educational programming available for children,
especially on publicly accessible channels. The market is
not doing enough to demonstrate to broadcasters that there
is a programming need that is not yet being met. With the
dawning new age of digital television, it becomes
increasingly more important for the government itself to
step in and let that need be known. Publicly available
television is a powerful market with which to demonstrate
to children the desirability of getting an education and is
also an important tool with which to help satisfy that
goal. By imposing mandatory children's programming upon the
broadcasters of digital television, not only would the
special needs of America's youth be served but also the
needs of the parents who otherwise might not be able to use
that medium for the best interests of their children.
78
NICOLE C. LALLY 1406 Agawela Ave. Apt. C
Knoxville, TN 37919 (423) 546- l 551
lallync@ justice. law. utk. edu
The Honorable William Kennard
Secretary The Federal Communications Commission
445 12th Street SW Room TW- A306
Washington, DC 20554
RE: MM Docket No. 99- 360 FCC 99- 390
March 15,200O
Dear Chairman Kennard:
The following comment is submitted per the Federal Communication Commission’s [FCC]
request for comment published in the Notice of Inquiry [NOI] regarding the “Public Interest
Obligations of Television Broadcast Licensees, ” 65 F. R. 42 1 l- 01. As a concerned citizen and a
registered voter, I am responding to your request for public comment on the proposed measures for
“enhancing political discourse.” The proposed additional regulatory requirements are ill- advised and
problematic, because (a) the FCC should not mandate additional obligations for Digital Television
[DTV] broadcasters from which other forms of media are exempt; (b) mandating that broadcasters
provide free air time to political candidates amounts to a violation of the United States Constitutional
Takings Clause [Takings Clause]; and (c) allowing the station to decide which political candidates
will receive air time is impractical and will only lead to more governmental intervention and
administrative burden.
.I _ .I . ..--..- -_._- _l~ l_- --
79
(A) Additional Requirements for DTV are Uniust and Stifling
The DTV broadcasters are making the transition from an analog to digital due to a
governmental mandate. Therefore, because this transition was not volitional, it is unjust for the FCC
to impose additional requirements on DTV broadcasters. Although DTV broadcasters could have
made the transition on their own accord, the lack of governmental involvement would have allowed
them to transition at a slower pace and with a smaller capital investment. Therefore, because
governmental intervention has already made a greater capital investment necessary, it follows that
the FCC should not impose additional financial burdens in the form of mandatory free air time.
Additionally, the evolution of DTV is “by no means a ‘windfall’ for the industry.“ ’ Indeed,
“[ llicensees must endure considerable expense in equipping and operating two stations -- analog and
digital -- over a lengthy period of time, without any assurance of increased audience or advertising
revenue.” While the government has provided accessibility to the digital spectrum, stations are still
responsible for financing the infrastructure necessary to utilize this technology. 2 The mere fact that
broadcasters must invest huge amounts of money in the infrastructure necessary to air DTV debunks
the myth perpetrated by supporters of imposing requirements of mandatory free air time -- that DTV
broadcasters have been given the outright gift of a public airway and should therefore not object to
any additional requirements made of them. A true “gift” is given without strings attached, and the
’ See Richard E. Wiley, Proceed With Caution, 13 DTV BUS. (January 24,200O).
2 See Public Interest Mandate Under DTVDebated, TELEVISION DIG. (December 8,
1997)( discussing the heavy cost of switching to DTV). One broadcaster, Belo Broadcasting, will
spend more than $50 million switching to DTV. Id.
2
.._” -.... _.. _-... ^ ..-. -- - .-_- 1-_~-._ 1_“-.-~.~-.
80
recipient is not forced to take it.
Moreover, in the likely advent of a diverse and fiercely competitive video marketplace, DTV
will soon be competing with other forms of media, such as cable providers, satellite providers,
telecommunications providers, and computer operators. Some of these future DTV competitors are
being deregulated, while Congress is allowing others considerable flexibility. 3 This disparity of
treatment -- decreasing regulation of DTV’s future competitors while increasing regulation of DTV
- is not a just course or one the FCC should embrace.
DTV should not be burdened with additional regulations, not only because it is would be
unjust, but also because it would stifle the implementation of DTV and discourage experimentation.
DTV is a young industry; its technology and service are both new and evolving. It has yet to firmly
establish itself in today’s marketplace, and therefore regulation in this infantile stage could possibly
impede its progress. 4 This is particularly important when considering that the DTV transition has
recently gained momentum; the FCC has recently taken action evidencing its support of the
3See Richard E. Wiley, The Digital Television Future, COMM. LAW. (Fall 1998).
“[ Ulnder the 1996 Telecommunications Act, cable is on its way to being substantially rate
deregulated once again. And Congress also has allowed the telephone industry considerable
flexibility to provide in- region video service -- either as a common carrier, a cable operator, a
wireless cable provider, or under a new “open video service” model in which telcos can carry
their own programing as long as they make capacity available to non- affiliated program
providers.”
4See Wiley, supra note 3. “The imposition of new and burdensome regulatory
requirements at this point, when the success of digital services (i. e. HDTV, SDTV, data and
interactive offerings) is still uncertain, could stifle experimentation and slow the entire
implementation of digital technology.” Id.
3
81
industry’s growth. 5 Therefore, it does not follow that the FCC would now take action which would
impede its growth.
(B) Mandating that Broadcasters Give Free Air- Time is a Violation of the Takings Clause
The Takings Clause of the Fifth Amendment to the United States Constitution provides: “Nor
shall private property be taken for public use, without just compensation.” The majority of the
Advisory Committee supports -- and Geller et al. promotes -- a proposal that would force DTV
broadcasters to provide political candidates with free air time, a violation of the Takings Clause. In
order for this clause to apply, several criteria must be met. First, the property must be private. The
FCC must concede that the television air time of privately owned and operated broadcasters is
private property -- they have invested a huge amount of capital to make this service available to their
viewers, and the sale of it for commercial use is the primary means by which broadcasters earn
revenue. Secondly, the property must be taken for public use. The FCC must concede that this air
time would be taken for public use; the very rationale behind mandating that broadcasters relinquish
their air time is that it is necessary to introduce the public to the candidates seeking public office.
‘See Richard E. Wiley, DTV: Stay the Course! DTV BUS. (March 2000). The FCC is
encouraging the growth of the DTV industry: “‘[ Clable- ready’ DTV sets should be available in
the next 12- 18 months . . . ; resolution of the remaining standards- related issues . . . appears
likely in the relative near term; the modulation/ reception concern should be remedied in
successive generations of receiver designs (much of the progressive/ interlaced scanning debate,
so evident a year or two ago, has faded away with DTV equipment interoperability progress); a
wide variety of digital equipment, both consumer and professional, is now available; and a
number of video networks -- broadcast, cable, and satellite alike -- are increasing their DTV
program offerings . . . .” Id.
4
82
Finally, the property must be taken without just compensation. The FCC must also concede that the
two proposals promoting mandatory free air time do not include an offer to justly compensate the
broadcasters for their private property. Therefore, as is, the proposals could not pass constitutional
muster.
If, however, the FCC agrees that political candidates access to the public through privately
owned and operated television air time is necessary for the reasons set forth in the NOI, then the FCC
would be required to justly compensate the private broadcasters. The determination of the air time’s
value would require research into the fair market value of that particular block of time. In order to
make such a determination, one must consider factors such as the common asking price for the block
on that specific time of day, day of week, time of year, as well as any special events that the station
is broadcasting which may affect ratings. This very elaborate factual determination would have to
be made on a station- by- station (case- by- case) analysis -- a process which would require a great deal
of agency resources. Furthermore, compensating broadcasters in this manner could prove to be
prohibitively expensive, as the NAB Report states that in one election cycle its broadcasters
voluntarily devoted $148.4 million worth of air time. 6
(C) The Proposal is Impractical and Will Onlv Lead to More Governmental Intervention
and Administrative Burden
The proposals’ purpose, as advocated by the Gore Commission and Geller, et al., is to
%ee NOI, item #35.
83
provide more political candidates with access to air time. These proposals, if implemented, would
therefore “fundamentally affect the electoral process.“ 7 Surely the FCC, as an unelected body, would
not want to tamper with the electoral process, as Congress is the sole governmental branch entrusted
with such power. Such action would constitute a separation of powers conflict, in that the executive
branch would be exercising powers specifically reserved by the Constitution to the legislative
branch. For an executive agency to exempt a Constitutional Amendment is per se unconstitutional.
Additionally, because the purpose behind adopting these proposals is to affect candidate
access to the public and thereby affect the electoral process, station management and discretion, as
proposed in the NOI, would become impractical. Indeed, involvement in the electoral process
signals the necessity for governmental involvement. One can easily imagine a scenario in which a
disgruntled political candidate, who was denied access to air time due to either logistical reasons
(only so many candidates could logistically be allowed access) or his unpopularity (broadcasters as
a rule try to air subjects that attract viewer interest), would attempt to redress his concerns in court.
A tribunal would decide that because governmental action had mandated that candidates have access
to the air time, and because the political process is also governmentally supervised, the government
should also regulate the process by which political candidates gain access to the air time. However,
7Commissioner Powell’s expressed reservations about the constitutionality of the
proposed rulemaking. Specifically, Powell said that he had “grave concerns” about whether the
FCC should act issues that could “fundamentally affect the electoral process” without specific
Congressional direction. Additionally, Commissioner Furchtgott- Roth stated that Congress has
“deliberately decided not to act” on free air time, and therefore he asked whether the FCC should
become involved in subsidizing the political process. CFCC Opens DTV Public Interest Inquiry
Despite Reservations, COMM. DAILY (December 16, 1999).
6
84
several questions would remain: Which governmental entity would be entrusted with the decision-
making process ? The FCC? The FEC? Local government ? How would that governmental body
decide which candidates receive access to air time? Would this require mandating that broadcasters
allocate additional free air time out of their broadcasting day? Would the governmental entity have
the resources to allocate to the decision making process ? Simply put, by involving private entities
in the public political process, the FCC would be opening the door not only to constitutional
challenges but also to increased governmental involvement and administrative burden.
Conclusion
In sum, the proposals made by the Gore Commission and by Geller, et al. would stunt the
only recent progress of DTV implementation, impose obligations not required of DTV’s competitors
in the communications marketplace, raise such constitutional problems as a Takings Clause violation
and a separation of powers violation, and ultimately require more governmental interference in the
DTV industry. Additionally, it is not entirely clear why the advent of DTV should trigger the
imposition of new requirements on broadcasters. The NO1 recognizes that broadcasters have
donated a considerable amount of air time to public interest matters8 a definite sign of successful
self- regulation. The recommendation proposed by the FCC (as opposed to the regulations also
proposed) would encourage broadcasters to devote more time to the public interest and allow the
‘Specifically, in the 1996 election cycle, broadcasters valued their time at $148.4 million,
and several large networks provided free air time to presidential candidates. See NOI, item #35.
7
85
young DTV industry to implement these recommendations without triggering all of the constitutional
and pragmatic problems that would accompany a mandate.
Sincerely,
l&& C.
Nicole C. Lally
86
TO : Chairman William E. Kennard
FROM : Robert R. Kurtz
cc : Professor Glenn H. Reynolds
DATE : March 16, 2000
RE : Comment on Proposed ‘Public Interest Obligation of
Television Broadcast Licensees"
Dear Chairman Kennard,
In response to the Federal Communication Commission's
request for public comment, 65 Fed. Reg. 4211, (January 26,
2000), I would like to express my concerns about the obligations
of Television Broadcast Licensees as they make the transition
from analog to digital television. From the perspective of a
graduating law student about to enter the private sector, the
potential of digital television to affect change in the community
at large is unmatched. The Federal Communication Commission's
[FCC] Notice of Inquiry noted a panoply of concerns raised by
various special interest groups. Based on the "Gore Commission"
recommendations, the FCC Notice of Inquiry sought, in particular,
comment and reaction to the duties or obligations of broadcast
licensees concerning (1) the potential effects the new
1
87
technology has on children, (2) public health, and (3) greater
accessibility to technology by persons with disabilities. I am
writing in support of placing greater responsibilities on
broadcast licensees as they make the transition from analog to
digital television.
Introduction
Digital Television holds the promise of providing
interactive programming in every home in the country who cares to
own a television. Digital Television broadcasters will have the
potential to transmit more data into a household than ever before
considered possible. The combination of traditional television
programming coupled with Internet- like access to information and
products makes Digital Television an unmatched tool for marketing
and advertising- l
Broadcasters will have the ability to target individual
homes, and individual viewers, with taste specific
advertisements. Broadcasters will have the ability to track
viewing preferences and send targeted advertisements directed at
the particular viewer. Rather than waiting for the consumer to
decide to purchase a product, advertisers will be able to take
‘The Center For Media Education- http:// www. cme. org/
2
88
advantage of impulse buying tendencies. Broadcasters and
advertisers will have the ability to send specific advertisements
to a consumer. Through interactive programming, the consumer
will be able to change screens and purchase the product
instantly. This tool has great potential in helping the
community, but it also has great potential for abuse.
Children and Disital Television
The 1990 Children's Television Act limited the duration of
advertisements directed at children to twelve (12) minutes per
hour on week days and ten minutes and thirty seconds (10.5) per
hour on weekends. 2 This presents a serious problem when applied
to the realm of Digital Television. While it is fairly easy for
a broadcaster to determine the number of minutes advertisements
have been directed at children per hour in analog broadcasts, it
is much more difficult in Digital Television.
If a child has the capacity to switch screens from a program
to an "Internet like" screen for interactive communication with a
favorite cartoon character on a commercial site, should the
broadcaster count this as part of the time directed at children.
The answer must be an unequivocal yes. Studies have shown that
*Children's Television Act codified at 47 U. S. C. A. $303a.
3
89
children are more susceptible to advertisements than adults. 3
Furthermore, studies have shown that children have greater
difficulty distinguishing between the reality/ fiction of
Inquiry must be made into the effects this type of
interactive programming will have on children. The specter of
children's individual viewing habits being tracked and then
targeted by advertisers should cause adults to question the
intrusiveness of this tool in the home. Broadcast Licensees need
to take extra care to assure that children are not exposed to
products that present serious risks to their well- being.
Public Health
Directly related to the concern for children interacting
with Digital Television, is the obligation of broadcast licensees
concerning public health. As the Center for Media Education has
noted, the Internet is already full of web sites and web
advertisements devoted to liquor companies and tobacco
companies. 5 The challenge facing broadcast licensees is to
3The Center For Media Education- http:// www. cme. org/
4Children’s Understanding of What is ‘Real’ on Television-
http:// www. aber. ac. uk/- dgc/ realrev. html
5The Center for Media Education- http:// www. cme. org/
4
90
guarantee that advertisements are targeted at the appropriate
audience. Tobacco companies have been banned from television
advertising since the 1970's. Liquor companies have voluntarily
limited their advertisements for many years. With Digital
Television, it will be possible for a consumer to switch from a
program to a web site advertising a product not traditionally
advertised on television.
The issue is whether a child will have access to the \\ Joe
Camel" character through the Internet capacity attached to
Digital Television. If this threat is not severe enough, it is
quite possible that ‘Joe Camel" will become interactive, and
entertain children. The same concerns are relevant in
considering adult viewers.
Americans across the nation are growing more unhealthy every
year. Popular culture continues to glorify the perfect body, but
in reality Americans are getting larger every year. Digital
Television has the potential to increase the rate of America's
health decline. Cigarette advertisements will be available, as
well as liquor advertisements. Consumers will now have little
reason to leave their homes, as Digital Television allows people
to shop from home. Additionally, the relatively few broadcast
licensees will control the flow of health related information to
5
91
the public.
It is necessary to require that broadcast licensees dedicate
a substantial portion of broadcast time to health issues.
Digital Television has the technical capacity to transmit health
news in multiple formats. It is certain that the more
information available to the public in varying formats, will
benefit the greatest number of people.
Access for the Disabled
Digital Television broadcasts can be transmitted in several
different levels. A broadcaster will be able to broadcast a
traditional television program. At the same time, the
broadcaster will have the ability to overlay that program with
other information, such as closed captioning or other services
related to allowing access for the disabled.
Broadcasters should be required to provide more of these
services. People For Better TV [PBTV] has suggested that closed
captioning and descriptive services be phased in over the first
four (4) years of a stations digital broadcast. PBTV limits its
recommendations to public service announcements, public affairs
programming, and political programming. 6 These recommendations
6People For Better TV- http:// www. bettertv. org/ dangers. html
6
92
do not go far enough.
Digital Television can revolutionize technology for the
disabled. Digital Television can open up almost unlimited
amounts of information and entertainment for the disabled. The
ease of access Digital Television offers is unparalleled.
Broadcasters should be required to expand closed captioning and
descriptive services to all programming. Four years will provide
ample time to phase in this additional information, if it is done
at the same time as the digital system is developed. Rather than
bear the expense of retroactive action, broadcasters should be
required to add these services at the same time they provide new
'traditional' programming.
Conclusion
As broadcast licensees begin the transition from analog to
digital television, we are presented with a unique opportunity to
make some necessary improvements for the public. Digital
Television Broadcasters need to consider the potential effects on
children, and must accept stricter standards of conduct to
protect the nation's children. Broadcasters also need to be
aware that the adult population is at risk as well. Broadcasters
need to accept greater responsibility in providing the public
with health information. Furthermore, broadcasters must guard
7
93
against the invasion of advertising dollars from tobacco and
liquor companies. Finally, broadcasters must assume
responsibility for providing greater access to the disabled with
the advance technology available. This will assure that a
significant minority will have greater access to information and
entertainment.
Thank- you.
Robert R. Kurtz
94
March 11, 2000
The Honorable William E. Kennard Chairman
Federal Communications Commission 445 lZth street, S. W.
Washington, B. C. 20554
FE: Public Interest Obligations of Television Broadcast Licensees
Dear Chairman Kennard:
I am a third year law student at the University of Tennessee
College of Law commenting on the Proposed Rules for the Public
Interest Obligations of Television Broadcast Licensees. ' Although I
am somewhat opposed to stricter regulations for television
broadcasters solely based on the conversion to digital, I do
understand the need for regulation considering the enhanced quality
of television. However, I believe that all efforts should be made to
encourage voluntary efforts on the part of broadcasters. Because the
future of knerica's children is so important, if stricter regulations
are deemed necessary, educational programming is an area that should
be addressed. Free air time for political candidates and the
promotion of diversity are also issues of such critical importance.
I. Is there an identifiable need for further regulation of
television program content?
Under the Communications Act of 1934, before issuance, renewal,
or transfer of a broadcast license there must be a finding that it
will serve the public interest. To this end, the Commission has
already delineated regulations regarding the public interest
obligations of broadcasters. Are stricter regulations required
simply because broadcasters are changing from analog to digital?
1
95
Many would argue yes, relying on the new technical capability and
improved picture quality of digital television. However, considering
the financial burdens that have been placed on broadcasters to make
the transition from analog to digital, any new regulations should be
as burdenless as possible.
Although it is arguable that the enhanced quality of digital
television requires more stringent public interest obligations, the
huge costs of transition endured by the industry suggest that a
different course should be taken. Among the 120 stations in the top
thirty markets, the average allocation for equipment expenditures in
the first year of digital adoption was "$ 3 million - about S- five
percent of average annual revenues of $57 million." ' Although five
percent may seem like a small amount when compared to the average
annual revenue, for smaller stations the burden could become
intolerable. For example, many smaller stations have opted to sale
rather than incur the burdens of digital conversion. 3 David Woods,
owner of WCOV- TV in Montgomery, AL, is looking to invest over $4.5
million over the next three years in station that he paid $4 million
for thirteen years ago. 4 The amount he is required to invest to make
the conversion is about "100 percent of average annual revenue” for a
station in markets 100- 150.5 Many stations have had to petition
their state legislatures for funding to make the transition. 6
If new and stricter regulations are adopted, they will apply
equally across the board. The financial burdens of additional public
’ Notice of Proposed Rulemaking, Public Interest Obligations of Television Broadcast Licensees, 65 FR 4211 (Jan. 26,200O).
* Deborah McAdams, The Business of Digital Television: September 1998 - Digital Disparity (visited
$u f; lZOOO) .
2
96
interest obligations will fall most heavily upon those stations least
able to afford them. These stations, because they are typically
based locally, are the ones who offer more programs in the local
public interest. Why impose additional burdens that could possibly
eliminate valuable broadcasters who already serve the public
interest? Furthermore, the Commission claims that diversification is
one of its important goals. It must be recognized that minorities
own many of the smaller broadcasting stations. Additional burdens
that may cause the sell or merger of minority- owned stations defeats
the Commission's efforts at diversification.
Opponents of stricter regulation point out that program quality
cannot be regulated. New public interest obligations could result in
added low quality programming of marginal public interest value. If
any new regulations are to be instituted, they should be in areas of
prime importance.
II. Children and Television
The Children's Television Act of 1990 enables the Federal
Communications Commission to prescribe standards regarding children's
television programming. ' Congress has recognized that children are
of vital importance and that television is a factor in their healthy
development. In 1999, the proportion of children with television
sets in their rooms reached a four- year high of 48.2%. ' The average
total time children spent in front of the television averaged 4 l/ 2
hours per day among 2- 17 year olds. ' This data underscores the fact
that television is an important medium that influences children.
’ 47 U. S. C. 5 303a( a)( 2000). * Jeffrey D. Stanger and Nataha Gridina, The Anne& erg Pub. Pol'y Ctr., MEDIA IN THE HOME 1999: THE
FOURTH ANNUL SURVEY OF PARENTS AND CHILDREN 8 (1999).
‘Id. at 9.
3
97
If the Commission feels that stricter regulations should be
imposed on broadcasters, children's television is one area that is
important enough to be considered. People for Better TV proposes
that a minimum number of hours each week should be set aside for
educational programs or services, which might include data
transmission. They suggest a minimum of seven hours each week."
This could be accomplished by one hour each day. This requirement
will not be particularly burdensome considering that most
broadcasters already offer this much." Raising the standard will
also not be particularly burdensome in the digital age because of the
increased amount of prograrmning available. Broadcasters must now air
three hours out of 168 hours of available programming per week. With
the advent of digital, programming capabilities will be doubled.
Distribution of the educational programming requirement should
be left to the discretion of the broadcasters. For instance, those
broadcasters who choose to multicast should be allowed to satisfy the
requirement on one program stream instead of having to distribute
programs throughout all their program streams. Broadcasters are more
knowledgeable of which streams would be likely to reach the greatest
number of children.
People for Better TV also suggest that commercials be limited
during children‘ s programs. Current regulations limit the "duration
of advertising in children's television programming to not more than
10.5 minutes per hour on weekends and not more than 12 minutes per
lo Comment by People for Better TV by Mark Lloyd, Counsel, to William E. Kennard, Chairmaq Federal Communications Commission 2 (Nov. 16, 1999)( on file with the Federal Communications Commission).
l1 Data from the National Association of Broadcasters compiled in 1995, showed that the “amount of educational and informational programming designed for children had increased more than 100 percent
between the fall of 1990, before the Children’s Television Act took effect, and the f& ll of 1994.” National Assoc. of Broadcasters, NAB Survey Shows More Than I OO!% Increase in Children’s Educational
Programming Since 1990, (Oct. 12, 1995) .
4
98
hour on weekdays." 12 People for Better TV advocates that digital
broadcasters be limited to no more than four commercials, no more
than sixty seconds long, per hour. 13 This proposed requirement is
particularly stringent when it is considered that advertising is the
way in which broadcasters generate revenue which enable them to
broadcast educational programs. Because of the already burdensome
costs of converting to digital, I suggest that additional
requirements limiting commercials during children’s progranrming be
postponed until a later date when thgr are found to be necessary and
feasible.
III. Enhancing Political Discourse
The Gore Commission focused its attention on encouraging voluntary efforts on the
part of broadcasters. The Gore Commission recommends a voluntary standard of five
minutes per night for candidate centered discourse thirty days before an election. I4
Although it is agreed that voluntary efforts should be encouraged, a more beneficial
approach would be to grant free air time and restrict the amount of total air time a
political candidate would have for advertising. This would ensure that more affluent
candidates could not saturate the airwaves just because they have more funds to purchase
airtime with. However, this proposal may have constitutional limitations and may be
better addressed by political campaign reform.
Why free air time for political candidates? Money is pervasive in today’s political
arena. Those with a good message but less money are at a disadvantage when compared
I2 47 U. S. C. §303a( b). 13Comment by People for Better TV by Mark Lloyd, Counsel, to William E. Kexmard, Chairman, Federal
Communications Commission2 (Nov. 16. 1999)( on filewiththeFed& Communications Commission).
5
99
to their more affluent counterparts. Free air time would equalize their positions. Free air
time would reduce the influence of money in politics. It would help underfbnded
challengers make their views known to the public. Also, it would increase and improve
the information the public receives.
Many would argue that free air time would saturate the market and thus
discourage people from participating in the political process. I5 However, a 1997 survey
by the National Association of Broadcasters showed that many candidates reject free time
due to political considerations. l6 Over a quarter of stations had debate offers rejected.”
This phenomenon would most likely continue even if free air time were required.
Another argument that is advanced is that more free political advertising would mean
more pressure on broadcasters and more negative campaign ads. However, the data is to
the contrary. In a 1997 study of advertising in the New Jersey Governor’s Race, the
Annenberg Public Policy Center concluded that there is “a relative lack of attack” during
free air time. ” The Center attributed this to the fact that “[ wlhen candidates speak on
camera, they are more accountable for the messages they disseminate and, as a result, less
likely to attack their opponents.“‘ g Because the time given to candidates is free, they may
feel more responsible for the content of their messages.
l4 James M. Burger and Todd Gzay, The Gore Commission Report on Public Interest Obligations of Digital Broadcasters: Self- Regulation andIncreasedFkxibility, 713 (visited Feb. 28,200O)
.
” Id.
l7 Id. Is Paul Waldman, Anne& erg pub. Poi’y Ctr, Free Time andddvertising: The 1997 New Jersey Governor’s
p;. 4 (Feb. 1998).
6
_ .- _- .__-. “. -.
100
Most importantly, the burden on broadcasters will not be great because they are
already offering free time. An April 1998 report of the shows that the projected value of
free air time donated by television and radio stations and national networks for debates,
candidate forums, and convention coverage was about $148.4 million. 20
IV. Diversification
The Commission’s efforts at diversification are noble. As of 1997, minorities
owned 2.8 percent of all broadcast properties in the United States. 21 Lack of minority
ownership can probably be attributed to lack of access to investment capital and historical
structures. However, the Commission has recognized that policy initiative and incentive-
based programs must be implemented. If one of the Commission’s goal is to further the
public interest, diversification serves this goal. Minority ownership can enhance
diversity of viewpoint and raise minority employment.
Although the Commission’s Notice of Proposed Rulemaking identifies many
noteworthy policies, one in particular is worth commenting on. The Advisory Committee
Report recommends that out of the returned analog spectrum one new 6 MHz channel be
reserved for purposes such as educational programming directed at minority groups. This
plan is analogous to giving AM radio stations to minority owners - lesser quality and a
smaller audience. As an African- American I feel that it is suggested that I should
appreciate the free air time given, even if it is of lesser quality and capability than digital.
*’ National Assoc. of Broadcasters, A Nat’l Rep. on the Broadcast Industry’s Community Serv. (April 1998) .
*’ Nat’1 Tekcommunications and Information Administration Minority Telecommunications Dev. Program, Minority Commercial Broadcast Ownership Overview, (visited Mar. 10,200O)
utacastil~-(‘ reati? l~ hcentives: Fees for Ancillary Services ofsered by
Digital Television Stations, (December 1998) htt~: lfwww. digitaltelevision. com/ lawl298tuhtml. ’ Id.
123
regarding children's television, 7 political campaigns, * and
indecent broadcasts9 should still obtain, but should apply
to each and every programming stream -that is broadcast.
The Notice of Proposed Rulemaking asked whether
multicasting broadcasters should be allowed to satisfy
these requirements on just one of the streams, leaving the
o. ther streams free of such public interest applications.
This option should not be available to broadcasters because
such an approach misconstrues the public interest rules as
broadcaster- centered, rather than public- centered. After
all, the obligations are not to "punish" the broadcasters;
IL 'F they were, then allowing the broadcasters to pay this
penal- ty all on one stream would be sufficient as long as
the broadcasters' total obligations were paid.
However, instead of being aimed a- t the broadcasters,
the public interest rules are intended to benefit the
public. This elementary concept is one tha. t has seemingly
been lost in the technological shuffle. That is, if
broadcasters are allowed .to offer mul- tiple programming
streams, while including public interest features on only
one of them, then -the public will lose. Consider the
example of a broadcaster offering three programming
’ See 47 U. S. C. $303( b)( a)
* See 47 U. S. C. $3 15
’ See 47 U. S. C. 9303
6
124
streams: an ally- news stream, an all- sports stream, and a
stream tha- t only includes public service announcements,
local campaign news, etc. In this scenario, only one stream
would be used to numerically sa. tisfy the broadcaster's
publi- c I nterest requirements, while other more popular
programming streams would be transmitted totally free of
public interest rules. In theory, the public would still
have -the choice of which programming to view. However, in
reality, the public would be ill- served if broadcasters
were allowed to take advantage of this right of the public
to choose by placing lucrative advertising on popular
programming streams while putting all the public interest
features on other less popular streams. The public will not
served by features they do no. t see.
3 -. Datacasting
Ancther potential advan- tage offered by digital
television is datacasting, where the broadcaster is able to
offer the public additional information about the programs
they are watching, up- to- date stock information, CD quality
r; iusic, and even access to high speed internet service."
These services will benefit broadcasters either through
advertising or by being offered on a subscribership basis.
In return for using public airwaves for their own profit,
7
-
,-. _ ___“- _. _ ---- ,-~.1 ..-.-
125
broadcasters should be subject to public interest
obilgatlons applying to each of these datacasting features.
Scme examples of how broadcasters could use
datacasting for -the public benefit include offering news
tickers of local or community significance. Also, they
could use datacasting to increase the availability of local
disaster warnings. In addition, datacasting offers viewers
.the ability to be interactive. This could be especially
valuable in serving the public by giving the viewing public
a unique opportunity -to communicate with broadcasters and
to sl~ pply broadcasters with more information to determine
what specific locai needs should be addressed.
Some of these applications were discussed by the Gore
Commission Report. I will no- t comment extensively on the
Gore Commission's report, but I would like to comment on
one proposal made therein. The Gore Commission suggested
that there should be a two- year moratorium on additional
public interest obligations for stations that choose to
multicast. This is intended to give broadcasters an
opportunity to explcre options in -the market p1ace. l'
While I agree with many of the Gore Report's proposals
to impose additional public interest obligations on digital
” James M. Burger and Todd Gray, I~ a~ a~ asti~~--(‘~ eatil? l: hcentives: Feesfor Ancillary Services ofsered
Ly Digital Television Stations, (December 1998) .~ http:.. www. digitaltlelevision. com/ law1298p. shtml~.
8
-_. ._ _ ___“--- ._.__“. I _..----.- --..-
126
broadcasters, the two- year moratorium is a bad idea for
-three reasons. Firs- t, it would unjustly enrich broadcasters
at the expense of the public. Under such a moratorium,
broadcas, ters could reap -two years' worth of revenue by
multicasting, all while being completely unfettered by the
obiigation to compensate the public. Second, broadcasters
would use this two- year head start to explore the market
for more and better ways to benefit financially at the
expense of the public. And third, during this time, these
public interest- free practices would become more entrenched
and harder to change once the moratorium expires. A better
solution would be for the public interest obligations to
attach immediately to any multicasting and datacasting used
by broadcasters. That is the only way to ensure the proper
balance under this "social contract" between broadcasters
and the public.
ITi LA. Conclusion
Digital television offers great opportunities to both
digital broadcasters and -the viewing public. However,
unless the existing public interest obligations are applied
to these expanded opportunities, only the broadcasters will
reap the benefits of this technology. Thus, additional
public interest requirements should be imposed on
” James Burger and Todd Gray, Ihe Bore Commission Report on I’uhiic Interest Obligations of Digdai
9
-_ .~ .._... _-._. _.... ..--.-.. - ..- ..*---,-. --- .-, ll” lllllllll ri-.
127
broadcasters utilizing digital technology. Not only should
these public interest requirements be increased, they
should apply to each new aspect of digital technology
Iutilized by broadcasters. The soundness of this principle
is underscored by the Congress' enactment of 5336 of the
Communications Act, which addresses the new "ancillary and
supplementary services" offered with more broadcast
spectrum flexibility. The statute states tha- t holders of
broadcasting licenses will be allowed to offer "such
anciliary and supplementary services on designa- ted
frequencies as may be consistent with the public interest,
convenience, and necessity." 12 The statute further states -
that "Nothing in this section shall be construed as
reiievlrig as television broadcasting sta. tion from its
obligation to serve the public interest, convenience, and
necessity. "I3 The language clearly indicates that
broadcasters are not supposed to be the sole beneficiaries
of the advantages offered by digital technology. The public
is also entitled to benefit. However, the public may be
lef- t out of these benefits, unless additional public
interest ob ligations should be imposed on broadcasters
using digital technology.
Bwadca. skrs, (January 1999) htt~:// www. digitaItelevision. com/ law 199pshtml.
I2 47 U. S. C. $336( a)( 2) [Emphasis added.]
” 47 U. S. C. $336( d)
128
B. Snyder- 3/ 16/ 00
. MAR 2 3 2uuo To: Magalie Roman Salas, Secretary- FCC
From: Brent Snyder
cc: Professor Glenn H. Reynolds
Date: 03/ 11/ 00
Re: Public interest obligations of DTV Broadcasters.
Dear Secretary Salas,
As a law student and current digital cable television
subscriber, I want to express my views on the public interest
requirements of television broadcasters which will be put in
place for the transition to digital television (‘ DTV"). It
appears to me that the majority of comments already filed on
this matter have been received from either public interest
groups or affected corporations. While reading this, keep in
mind that I am an individual consumer, motivated merely by my
feelings on what should be imposed on current licensees. With
that said, I want to state my general position that I oppose any
requirements imposed on broadcasters and urge the Commission to
charge broadcasters for the use of our public airwaves or sell
them at auction.
Introduction and Background
As I understand them, the previous public interest
requirements pertaining to analog TV were justified because
there was a "spectrum scarcity". It has been stated that the
1
129
B. Snyder- 3/ 16/ 00
‘spectrum's 'inherent physical limitation' justifies the federal
imposition of public service obligations in return for the 'free
and exclusive use of a limited and valuable' public resource. nl
This is, however, no longer the case. DTV utilizes a huge
spectrum that was not in existence, or even known about, at the
time these original standards were created. Additionally,
charging the broadcasters for use of the airwaves would
alleviate any responsibility to the federal government under the
above rationale. Because I doubt the Commission will accept a
non- regulatory approach, I also have a common sense approach to
some of the specific requirements being proposed, such as free
airtime to political candidates and emergency service
announcements.
Corporate Welfare
The giving away of the additional spectrum needed for the
transition to DTV has been described by many as one of the
greatest instances of corporate welfare this country has ever
seen. William Safire made a worthy comparison when he stated
that giving broadcasters free use of the airwaves is "like
giving Yellowstone National Park to the timber companies." 2 Not
only would charging broadcasters for the use of our airwaves, or
'William H. Read & Ronald A. Weiner, FCC Reform: Governing Requires A New
Standard, 49 Fed. Comm. L. J. 289, 294- 95.
2 Digital TV in the Public Interest (visited Mar. 10, 2000)
.
2
130
B. Snyder- 3/ 16/ 00
auctioning them off, put possibly more than $20 billion into the
economy3, it would allow broadcasters to pursue a free- market
approach and broadcast exclusively what the public wants to
watch.
One suggestion I have, although I feel not necessary due to
private contributions and donations, is using some of the funds
obtained from the auction to assist broadcasters, whether public
or private, in providing public interest programs, messages or
services (i. e. closed captioning). However, this assistance
should only be provided during the interim transition to DTV
until broadcasters can determine the level of public interest TV
their market wants and how best to provide it. On a similar
topic, the Commission should understand that regardless of any
requirements it adopts, under no circumstance should the federal
government award waivers of these requirements to broadcasters
providing programs with "public interest" messages contained
within (i. e. anti- drug themes in Sabrina the Teenage Witch;
among others). Unless the government is listed in the credits
of the program as providing support, I believe this is a
violation of current anti- payola laws. 4
3 ihttp:// www. cbo. gov>. ($ 20 billion was the approximate amount obtained by
auctioning off the spectrum for wireless and cellular communication. It has
been suggested that auctioning off the DTV spectrum would produce a possibly
greater amount; projections suggest between $lO-$ 40 billion).
4 47 U. S. C. A. 5508.
3
- __^, -_-_ _.. .--- ll..- l 1.1 11- 1-- ^.. I
131
B. Snyder- 3/ 16/ 00
Comments on Specific Standards
From my reading of the NO1 it is apparent that the FCC and
others are of the opinion that broadcasters must continue to
satisfy some form of public interest requirements. Although I
believe none of these requirements are needed or justified in a
free- market system; I would like to offer my opinions on why
some of the more specific standards proposed do not follow
reason.
Programming Streams and Public Interest Requirements
Because I believe that some form of requirement for public
interest broadcasting will be imposed, I urge the Commission to
allow broadcasters to satisfy these requirements on one channel.
The invention of the remote control has got to be one of the
greatest inventions promoting free choice and variety in TV
programming. Because of the remote control, people from the
comfort of their chair change channels with unbelievable fury
when bombarded with commercials or public service announcements
(" PSA's"). Additionally, with so many channels, and a great
deal more to come, people can click and click until they find
what they want to watch. Now this may be a sad state of
affairs, but the truth is that people who watch PSA's or other
public interest broadcasting do so because they choose to.
Thus, I argue that requiring broadcasters to show public
interest programming on more than one channel serves no purpose.
4
132
B. Snyder- 3/ 16/ 00
Allowing broadcasters to choose on what streams they
broadcast their programs will result in a situation similar to
cable television with more specific interest programming (i. e.
Food TV and HGTV). Not only will this benefit consumers, by
offering more choice in what to watch, but it benefits
advertisers by providing them a specific market to target.
Community Broadcasting
The NO1 addresses the lack of community coverage of public
affairs. While this may be the case in many places, forcing
broadcasters to show community based programs will have little
positive effect. The best example of this can be seen on cable
TV. In my hometown of Knoxville, Tennessee, the local cable
company provides a channel to be used by the community. What
sort of great community programming is shown on this station
besides city council meetings? Two of the most notable are
Wrestle Talk (a phone in Q& A show with local area wrestlers) and
a broadcast of Fetish Night from one of the local nightclubs. I
find it hard to believe that this is the sort of programming
that was intended when creating a public access channel, but
this is what resulted. The local news channels already cover
most other community events, often times to the extent that
‘real m news is ignored. I recall one instance when I was
waiting for an important story to be presented; I had to wait
5
133
B. Snyder- 3/ 16/ 00
through twenty minutes of high school and college football
coverage and a report on a craft- fair featuring soap carving.
On occasion the local affiliates will band together and
present a community affairs program. This occurred most
recently here with a program entitled "nine counties- one vision"
which was broadcast on all of the local affiliate stations. The
program featured local area children engaged in various
performances with the hopes of promoting community forums to
improve areas of east Tennessee. While this is noble of the
stations, I suspect those who watched it did so because they
were interested in the topic and perhaps in seeing their
children on TV, not because it had replaced their regularly
viewed programming. I also suspect that many people watched
other non- local cable programming, rented videos or perhaps did
something besides watching TV.
Political Discourse
The advisory committee and others have recommended that
requirements should be set which would force broadcasters to
provide airtime to local and national candidates. I suggest
that this is unneeded and unwanted.
First and foremost, this was previously attempted in the
1996 elections and was what can only be described as a failure.
All the major networks gave free airtime to both Bill Clinton
and Bob Dole. What resulted? According To Thomas W. Hazlett,
6
_ ,_ _ _ ” ,_ __.““_ ._,. I -.--.“.- _....^._... ~.
134
B. Snyder- 3/ 16/ 00
‘It turns out that, when politicians come on the screen,
Americans exhibit the hand- speed of Sugar- Ray Leonard grabbing
for their remotes." ' Additionally, I read a story a few years
ago about a new technique that New York cable companies were
using to persuade subscribers who had become delinquent on their
bills to pay up. Instead of just shutting off the cable box,
the company would block all channels on the box except for C-
SPAN. Never before had the companies had such a high rate of
on- time bill payment after this practice began. Thus, I believe
that more political discourse on TV is unwanted by the majority
of Americans.
I also believe it is unneeded. As has been demonstrated
only those who are truly interested in the political discourse
are the ones watching the existing programming. For those who
want the information, it is not hard to obtain. The local and
national news does some, albeit not very good, reporting on
candidates, and when enough people are interested they will
provide even more coverage (as when election time draws closer).
Also, there are other media sources which interested parties can
utilize besides TV, such as newspaper, internet and radio. In
this day and age of technology it can not be said that there is
5 For an excellent article discussing the problem of free airtime for
candidates, DTV and corporate welfare, See Thomas W. Hazlett, Must Scream TV:
The Hidden Costs of Free Television Time For Politicians (visited Mar. 10,
2000) .
7
135
B. Snyder- 3/ 16/ 00
not enough political discourse. What can be said is that it is
depressing that more Americans do not care about it; however,
forcing broadcasters to provide the more of it will not make
Americans care or even watch.
Emergency Alert System
The Commission also is considering what requirements to
impose on broadcasters concerning public interest services such
as the Emergency Alert System (" EAS"). While I feel this
service did serve a purpose, I believe requiring broadcasters to
provide it is no longer necessary. Local stations provide
sufficient coverage of emergency situations to do away with the
EAS.
The need for the EAS does not exist in today's technology
or media. Local news stations jump at the opportunity to
broadcast bad weather or other major "crisis". Just the threat
of snow, tornadoes or even heavy rain is enough to interrupt a
program already in broadcast or at least display the little maps
and warnings on top of the current program. Local news
commercials usually involve how superb their weather coverage
is. Why do local stations provide this service? Probably
because they know numerous people are interested and want
information about a local impending disaster. With DTV the
ability to broadcast warnings will be greater, therefore it is
hard to believe that the broadcasters will give up something
8
136
B. Snyder- 3/ 16/ 00
that draws such a huge audience solely because the Commission no
longer requires it.
Conclusion
While I feel the proponents of the public interest
requirements have good intentions; I believe they are misguided
and lack the common sense notion that people choose what they
want to watch. Again the first step in solving the "because we
gave you this for free you now owe us" problem is to simply
charge or auction off the spectrum thus relieving the
broadcasters of any responsibility under the old regime. If the
Commission does not take this approach, it should focus on the
behavior patterns of both TV viewers and TV broadcasters. By
doing so, the Commission can only come to the conclusion that
people are not going to be watching programs they do not want to
see when they have 100 other channels to chose from. I think
looking at the cable TV system that has emerged over the last
several years and the specific interest channels it has
generated proves this is
Are public interest
for people? Of course.
information on political
the case.
and community affairs programming good
Does America as a whole lack
policy and discourse? Most likely. Is
requiring broadcasters to air it going to make Americans watch
it? Certainly not. Thank you for your consideration on this
matter.
9
137
Sincerely,
./ .& -c , -x ' 5, ' -2 _. :
7 Brent Snyder
B. Snyder- 3/ 16/ 00
10
__--.
. .- -. . _._. .-.I -
138
Before the Federal Communications Commissio %! AR
2 3 zooo Comments of M. Grae Griffin
Regarding the Public Interest Obligations FCC fNAH RUUWi
Of Television Licensees
On January 26,2000, the Federal Communications Commission published a request
for comments regarding potential changes in the public interest obligations of broadcasters as
they transition to digital transmission technology. Notice of Proposed Rulemaking, 65 Fed.
Reg. 4211 (Jan. 26,200O). In response, I would like to communicate my views as an avid
television consumer, and one who hates to see unnecessary governmental regulations. From
the reports I have read, you have received a lot of pressure from public advocacy groups to
increase the quality and quantity of public interest programming. I am writing in opposition
to these lofty, yet misguided, goals, as they can only lead to broadcasters bearing an unfair
cost burden, and the needless waste of market resources.
Introduction and Background
Public advocacy groups postulate that broadcasters can better serve the “public
interest” by donating more broadcast time for political discourse, providing more educational
programming, and developing more programs that focus on community affairs. Furthermore,
they claim that 80% of the public is interested in broadcasters providing these services in
exchange for their “free” licenses. ’ However, these groups fail to recognize that broadcasters
already donate time, provide station resources and donate money in the “public interest.” In
addition, these groups have failed to answer the critical question of whether people would
1 Benton Foundation, PROMO’s Poll on American Attitudes About TV Programming, Public Interest
Obligations in Digital Age, 1999 WL 4634442, January 14, 1999.
..- *. ” . _-_” .^-_ .._._. ---- l._ l ll” l- l. ,-“.--- .- I--.- -. 1_- --,
139
actually watch more public interest broadcasting. Ratings have traditionally answered this
question in the negative.
It is doubtful that mandating minimum public interest standards in addition to
providing more programming would increase historically poor ratings. Therefore, there is no
need to penalize broadcasters by forcing them to provide programming that no one will watch.
Broadcasters bore a similar burden when they were forced to provide additional educational
programming for children. The federal mandate did not provide a more useful tool with
which to educate our children, rather it resulted in programs that kids weren’t interested in
watching. 2
Broadcasters are Dayinp their fair share
The public interest programming debate is fueled by a multitude of erroneous
assumptions made by these public advocacy groups. First, they are ignoring the fact that the
broadcast industry is already donating $5 billion per year in airtime for public service
announcements and political coverage, and raising $2 billion per year for charities, all in the
“public interest.“ 3 They are also ignoring the existing local news programs (morning, mid-
day, afternoon and nightly news) and community commitments (broadcasting local church
services on Sunday, announcing upcoming community events, public service announcements,
etc.) that stations are already making. Finally, they are overlooking the fact that some stations
are beginning to comply with requests to donate more airtime for the public interest. E. W.
Scripps Co. has announced that it will provide free airtime to candidates on its stations in
2 See Farhi, Flunking the Ratings Test CBS Dumps Educational Children’s Shows, The Washington Post,
January 9, 1998. at Al.
3 Chen, Issue of TV Air Time for Public Affairs Is Raised Anew, The Wall Street Journal, December 15,
1999, at B4.
140
Cleveland, Cincinnati, Detroit, Tampa, Baltimore, Phoenix, West Palm Beach, Kansas City,
and Tulsa.”
Despite these facts, public interest groups continue to push broadcasters to “go well
beyond” current efforts. ’ One reason they give is that broadcasters are receiving a gift of
public resources that has resulted in a $70 billion dollar windfall. 6 Another reason is that,
according to the Benton Foundation poll, 80% of Americans feel that broadcasters should
meet additional public interest obligations.
Broadcasters have the right to be skeptical of such a poll, because ratings have not
historically validated these feelings. If an opportunity to generate an 80% share of audience
existed, broadcasters would have certainly capitalized on it by now. More than likely this poll
shows that people are asking for something that they have no intention of using. Asking for
more public interest programming in a poll does not correlate to actually sitting down to
watch the program (a point I will elaborate in the next section).
Additionally, these groups are ignoring the economic pressure that broadcasters are
facing from the continual evolution of entertainment outlets such as the Internet, cable, and
satellite television. Currently, broadcast network ratings are on “life support” as cable
television continues to diminish the network’s share of the pie. 7 The primary result is less
advertising revenue. Thus, broadcasters are not generating the profit levels that will sustain
programming that generates even less revenue than their regular programming.
These groups must also take into account the considerable expense in equipping and
4 Stammen, Scripps Stations Offer Free Airtime in Political Races, The Cincinnati Post, January 17,
2000, at 4C. 5
http: l/ www. bettertv. or&& eback. html 6
g. 7
Brown, ‘98 In Review: Not A Prettv Picture, Electronic Media, January 4, 1999.
3
141
operating both analog and digital television stations over the lengthy transition time. There is
and will be considerable costs involved with constructing new transmitter towers,
transmitters, control rooms, and antennas. There is no doubt that larger television markets
like New York will be able to make up these costs faster than smaller markets like Glendive,
Montana. Larger markets have the audiences and the advertisers to make the transition work
more effectively for them. However, smaller markets do not have these resources readily
available, and feel that that the switch to digital television is a mandate for them to loose
money. Forcing them to provide certain programming will only compound the problem.
Thus, the short- term future for many broadcast markets has a lot of economic downside.
With that forecast, there is no need to continue to punish them by restricting the ways they
can generate revenue to compensate for their losses.
Learn From Past Mistakes
Not to long ago, the Commission required broadcasters to develop educational
programming that met certain minimum standards for children. Because of First Amendment
issues the standards were left vague. In spite of the vague standards, broadcasters introduced
a plethora of new children’s programs. Now studies are indicating that this approach has
been a failure, claiming “one in five ‘educational’ shows has little to no educational value.“ ’
This study also indicated that there is little in the way of children’s programming at night,
when children are most likely to view television. Interestingly, this study also showed that the
federally mandated program resulted in a reduction of locally produced educational
programming.
These studies are of little consequence because kids aren’t watching the programs.
Instead of watching what parents, politicians, and public interest groups asked for, kids
4
142
quickly turned to cable, video games, the Internet, CD- ROMs or whatever they found to be
more entertaining. One example makes this point abundantly clear. ‘Popular Mechanics for
Kids’ has performed better than many children’s shows but still gets ratings that are “30
percent lower than a show like ‘Beast Wars’.“ ’
The low ratings have lead to high turnover in children’s programming. Between 19
and 26 percent of the children’s titles in 1998 were scrapped before the new 1999 season. lo
Despite this, broadcasters continue to try and provide educational programs that deliver
ratings. However, this is extremely difficult because, as one analyst put it, educational
programming is the television equivalent of broccoli. l1 There is little question why
broadcasters aren’t excited about being forced to provide what amounts to the same type of
programming for their parents.
“Free” airtime only benefits popular candidates and maior political groups
One of the most controversial issues surrounding the public interest programming
debate is the donation of airtime for political discourse. Some feel the “public interest”
programming should be an endless line up of different political discussions about issues of
vital importance to the people they represent. Some envision the broadcast day starting with
NOW activists “discussing current events without hostile opponents interrupting and
distorting the message,“‘* followed by the NAACP hour, and then a round- table discussion
hosted by the League of United Latin Americans Citizens. Finally, the broadcast day would
end with a panel of ACLU members discussing the decay of civil liberties.
8 http: liwww. aapcpenn. org/ kidstv99/ release. html
9 Farhi, Flunking the Ratings Test CBS Dumps Educational Children’s Shows, The Washington Post,
$m. mry 9, 1998, at A 1.
http:// www. aapcpenn. org/ kidstv99/ release. html 11
Farhi, Flunking the Ratings Test CBS Dumps Educational Children’s Shows, The Washington Post,
January 9, 1998, at A I.
143
Others see an opportunity for local politicians to use otherwise cost prohibitive
television time as a means to get their message across to a mass audience. They have a
vision of congressmen debating issues of local importance, or the school board candidates
debating the future of area schools. All of this time is, of course, donated, because their
message serves the “public interest” by improving the democratic process. Furthermore, they
feel that this gesture is a critical step in campaign finance reform.
While these ideas are fine from a broad perspective, the actual means of
implementing them are full of pitfalls. First, networks already donate free time to political
candidates in addition to the discounted rates they must provide for such purposes. In fact, in
the last election cycle, the National Association of Broadcasters estimates that broadcasters
donated $148 million in free time. i3 An additional $15 million was offered, but turned
down. l4 Moreover, broadcasters provide endless hours of news coverage, televised debates,
and free time for candidates that want to appear. Some argue that providing more time will
make campaign fund- raising less of an issue. ” In reality, more heavily funded parties will
have to spend more to counterbalance the messages provided by their opponents during their
“free” airtime.
Second, and more importantly, these groups have failed to realize that airtime is a
finite commodity. Therefore, it will be impossible to provide airtime to all of the groups or
candidates that will want access. There will have to be some standard to decide who gets to
receive the time. However, almost any standard that is created will have First Amendment
12 Toledo and Rabin, NOW Foundation Calls for Better Television, National NOW Times, October 1,
1999. 13
Boliek. FCC Begins Public Service Work, Hollywood Reporter, December 16, 1999. 14 J&
15 & Omstein, One Small Step for TV Stations, One Giant Leap for Political CampaiPning, USA Today,
December 15, 1999. at 3 1 A.
6
- - . ... I_,.. -._-.-.-_..--“- ._ I
144
implications. Though they would not want to squeeze the KKK hour between the Rainbow
Coalition and La Raza’s programs, there would be no way to justify barring them from the
public airwaves. Along those same lines, station manages would want to only provide
limited airtime to the “serious” candidates, leaving candidates without a major party
affiliation with no access.
So who benefits? Large established groups and candidates with popular party
affiliations. These entities have the means to put a great deal of pressure on station owners at
the local level. However, their less powerful political or ideological rivals will not likely fair
so well. It is a simple truth of politics; those that can mount the most political pressure will
have their demands met. There is no way that such a plan could be consistent with the
principles of the First Amendment, or benefit the “public interest.” This may be why
Congress hasn’t pushed very hard for a specific program. Through much thought and debate,
they have undoubtedly concluded that these types of mandates would create more problems
than they solve.
Will the public continue to be interested?
I, like many Americans, believe in the principle behind public interest programming. I
think that involvement by the local media outlets plays an important role in community
development. For the most part audience response has driven broadcasters to voluntarily
meet the goals the public deemed important. However, it seems apparent that to have the
federal government taking on the role of “station manager” would hardly improve television’s
role in the community. Assuming otherwise dismisses the work done by local broadcasters
to determine what will and won’t work in the communities they serve.
7
I ~ .._.._. ._..__ _ _-_ -___-. .- I--“.-...--.~.- -__-
145
Furthermore, it would seem prudent to wait and monitor the role that digital television
will actually play in society. People from both sides of the aisle will agree that the role of
broadcast television is currently evolving. As the Internet, cable, and satellite television
blossom, the public may not be as interested in many of the features of broadcast television.
It is possible that broadcast television may become strictly an entertainment vehicle, while
people choose to get their information from other sources. It is too early to tell just yet, so
new mandates seem premature.
Conclusion
There is certainly no doubt that broadcasters owe a duty to the public. The
Telecommunications Act provides that Congress intended for broadcast licensees to have the
duty to serve the “public convenience, interest and necessity.“ 16 However, Congress did not
intend for broadcasters to serve the public interest to their financial detriment. Requiring
new, more stringent public interest standards would certainly be a detriment. Had Congress
intended broadcasters to pay for their licenses, they would have written it into the statute.
Along those same lines, if Congress wanted to impose a tax on broadcasters in exchange for
the broadcast resources, they would have provided for it in the statute. But they haven’t, and
the FCC should not try and backdoor such financial penalties under the guise of the “public
interest.” Therefore I oppose any attempt to try and put the financial burden of the “public
interest” on the broadcast industry.
16 47 U. S. C. 9; 303
8
- ._ ~..-.. _ -. _ - -.-.. .I
146
Dykstra, 1
To:
From:
William E. Kennard, Chairman - Federal Communication
Thomas A. Dykstra MAR 2 3 moo
cc: Professor Glenn H. Reynolds
Date: March 9, 2000
RE: Public Interest Obligations of Television Broadcast Licensees
FCC Docket No. 99- 390
65 Fed. Reg. 4211- 01
Dear Chairman Kennard:
In response to the FCC’s request for public comments concerning the public
interest obligations of digital television broadcast licensees, I would like to voice my
concerns as both a television consumer and future participant in local politics. From the
comments that have been filed and posted thus far, I have noticed that a number of
groups argue in favor of modified public interest requirements for providers of digital
television. While I agree with the underlying ideals of both the NO1 and many of the
comments, I would respectfully argue for more sweeping measures as concern
encouraging political discourse.
I. Introduction and Background:
Since the introduction of the radio wave medium of communication, there has
been an understanding that, given the inherently public nature of their medium,
broadcasters have a special responsibility to their respective communities. The
enforcement of broadcasters’ responsibilities to the “public[ ‘s] interest, convenience, and
__-_ _ -^,.. _-.-- -1.111~.--- --- - ..__ ._ .
147
Dykstra, 2
necessity “’ has been legitimately delegated to the FCC by Congress*, and with this
responsibility comes the prerogative to review the public interest requirements of
broadcasters in light of the technological advances of digital television. With digital
advancements including the potential for interactive television and viewer control over
various features of the presentation of programming, the potential for advancing the
public good is tremendous. With that in mind, I hope to address one of the legitimate
concerns with the NOI, namely that it “often mus[ es] about public interest mandates that
have no discernable nexus to the transition to digital technology.“ 3
I urge the Commission to adopt more extensive measures to encourage political
discourse. Specifically, I support measures that would require broadcasters of digital
television to promote political discourse by providing interactive coverage of public
meetings within their communities. 4 Furthermore, I would urge the Commission to
compel the broadcasters to utilize the technological benefits of digital television to make I
these broadcasts both understandable and meaningful for all of those able to receive free
television. While Americans are able to view the workings of their national legislatures
through CSPAN I and II, there exists no counterpart for local legislatures and
committees. As a result, those who are unable to attend the meetings, whether because of
work conflicts or the unavailability of transportation to the meetings, are left to the mercy
of local newspapers for details of their community’s governing committees.
‘NOI’I 1.
’ FCC v. WNCN Listners Guild, 4.50 U. S. 582,596 (1981) quoting FCC v. Nat’1 Citizens Comm. For Broadcasting, 436 U. S. 775, 810 (1978).
3 Separate Statement of Commissioner Harold Furchtgottroth, p. 1.
4 Examples of community meetings that a licensee may cover include, but are certainly not limited to
School Board Meetings, Chamber of Commerce Meetings, and Town Council Meetings.
148
Dykstra, 3
Furthermore, those in the community who do not have access to newspapers or are
unable to read English have little or no say in the community’s governance.
II. Promotion of Political Discourse Through Digital Television:
By requiring digital broadcast licensees to provide coverage of community
meetings, while utilizing all of the benefits of digital television, the FCC would
accomplish a number of the goals and priorities that it sets forth in the NOI. Firstly, the
above measures would satisfy in part the broadcaster’s responsibility to the needs and
interests of its community of license by promoting interest and access to the community’s
administration.
Second, the possibility of interactive television could go a long way towards
involving* those with disabilities in the administration of community affairs. An elderly
person with hearing difficulties could take advantage of the close captioning option, and
be able to respond interactively with those conducting the meeting through the use of the,
Internet. In addition, those who are of able mind, but disabled in a way that would
ordinarily prevent them from actually attending community meetings would be able to
participate in the community’s affairs as well.
Third, the ability of digital licensees to provide services in different languages
would serve to promote the goal of diversity in politics and the community as a whole.
The promotion of diversity is particularly appealing in community matters in that those
from other countries who have not yet learned English could offer valuable insights to
value and responsibility of the freedoms we enjoy in America. An illustration of how
valuable digital television could be to the goal of diversity is the example of one of my
college friends and her family from Romania. While Irene had managed to learn English,
149
Dykstra, 4
her father, who MS a significant leader in the freedom movement in Romania, had yet to
learn, and had great difficulty communicating with others. I dare say that his views on
the responsibilities that follow freedom would be of value to any community, and with
the advancements of digital television, it may be possible for his community to benefit
from his insights.
Fourth, interactive community meetings would provide an education tool for
children, another prime objective of the FCC. By allowing children a voice in the
community, especially School Board meetings, through two mediums that they are
intimately familiar with, television and computers, broadcasters would serve to promote
childrens’ interest in their communities, and ingrain civic responsibilities. Furthermore,
to anyone* who would argue that such a measure would be meaningless given kids’
terminal apathy when it comes to local administrative matters, I would suggest that he or
she consult a child about many communities’ measures to enact school uniforms. 7
III. Implementation of Proposed Requirements:
Returning again to Commissioner Harold Furchtgottroth’s complaints with the
NOI, I will articulate a number of ways in which increased political discourse can be
realized through digital television with a minimum of intrusion on the broadcasters’
interests. With the advent of digital television, broadcasters who before could only
utilize one channel, can now utilize five. With the increase of four available channels, it
would not be a terrible or unreasonable burden to require broadcasters to devote a portion
of a few or even just one of the channel’s air time to local community matters. In the
alternative, however, if the broadcasters find this requirement to be too burdensome, then
it may be possible to create a subsidy system in which the broadcasters support a channel
!
-
” ..-- _Il-.------ .
150
Dykstra, 5
for each community that continually broadcasts community matters, as does the cable
industry for CSPAN I and II. Either way the broadcasters choose to serve the
community, it does not appear that the burden would be intolerable.
IV. Arguments Against the Imposition of Additional Requirements on
Broadcasters:
In browsing the comments posted on the FCC Internet site, as well as the
concurring and dissenting opinions attached to the NOI, I have come across a number of
valid criticisms of additional requirements for broadcasters of digital television. One
criticism of additional public service burdens on broadcasters is that the advent of new
digital technology of itself should not justify additional public service requirements. This
argumentassumes that there is a fixed level of public service required of the broadcasters
regardless of advances in technology. If government regulations were static, as this
argument assumes, then the government would still be limited to regulations established
for typewriter and dirigible safety. More reasonable, however, is the argument that
broadcasters’ responsibilities to their communities should be commensurate with their
technological advances. From this argument, it makes sense for broadcasters to assume
greater roles in community service, specifically in the advancement of political discourse,
as their ability to broadcast becomes more flexible and advanced.
Another valid criticism of increased public service requirements for broadcasters
is the argument that expanded community service is contrary to the current trend of
deregulation, and is a symptom of the federal government’s insistence on ‘big
government. ’ Assuming that the first prong of the argument is true, and that the
government is in a period of deregulation, the fact that one would argue that an effort to
5 See note 3 supra.
151
Dykstra, 6
increase political discourse is symptomatic of ‘big government’ is interesting. In the
NOI, the initial proposal in support of political discourse involves increased airtime for
political candidates. While the NO1 does not go into detail, one can only assume that the
increase in airtime is across the political spectrum, involving neo - Marxists as well as
‘Bombs and Bridges’ John Birch Society members. Therefore, it seems paradoxical that
one would maintain that an increase in political candidate awareness, whoever the
candidate may be, would lead directly to ‘big government. ’ Moreover, the more
sweeping provisions that I propose would lead to an even greater rise in voter awareness,
allowing the populace, if they should so choose, to strike down ‘big government’
measures.
Yet another criticism of additional public service responsibilities for broadcasters
is that “it is not at all clear that free airtime would advance the . . . goals of ‘promoting
democracy’ and ‘better educating the voting public.“‘ 6 Even if one takes the NOI’s
proposals for increased political discourse involving free air time for political candidates,
it is hard to countenance an argument that providing more information on a candidate’s
positions and weaknesses in the opponent’s campaign does not educate the populace, and
thereby lead to a more vital democracy. The opponent’s argument becomes even more
baseless when applied to my proposals for heightened public service requirements. By
providing interactive broadcasts of local political and administrative meetings, it seems
clear that the public would have more opportunities to educate themselves on and involve
themselves in community matters.
6 Separate Statement of Commissioner Harold Furchtgottroth, p. 3 quoting NOI 9 3 1.
__.. _ __ .- ..__. --_ _ .,,.__” ._.. ^ ....I ^.. - -I . .-..
-. ll_-
152
Conclusion
Dykstra, 7
In conclusion, Mr. Commissioner, I think that the ideals behind the promotion of
political discourse through additional public service requirements is both noble and
necessary. In fact, I think that more sweeping measures should be adopted by the FCC
requiring broadcasters to somehow implement community political and administrative
meetings into the program line up. In so doing, the FCC would further virtually all of its
stated goals in working with broadcasters to serve the public interest, convenience, and
necessity. When I was a college student, I volunteered with a local senator’s branch
office. Most of my time was spent processing calls from constituents that had, through
watching CSPAN, become concerned with a particular piece of legislation, and wanted to
voice their epinion on the matter so that our office could forward their ideas to the
senator. While this work required a great deal of patience and time, it was nothing short
of inspirational to be such a vital cog to democracy. In implementing in part or whole my
proposals, it is possible to generate that type of enthusiasm at every level of government.
153
To:
From:
cc:
Date:
Re:
MAR 2 3 zooo
m MAIL
Magalie Roman Salas
Robert Lee McElroy IV
Professor Glenn Reynolds
3/ 10/ 00
Comments on Proposed Public Interest Obligations
of Television Broadcast Licensees
The FCC requested comments on proposals of how
broadcasters can best serve the community with the advent of
digital television" After researching this topic on the
Internet, it is clear that broadcasters were given a gold
mine by the 1996 Telecommunications Act. l For this reason,
broadcasters should adhere to certain rules created by the
your agency.
Digital television is an amazing leap in technology.
Now instead of one broadcast, a station will be able to send
out different broadcasts over one frequency at the same
time. This allows for more varied programming and a chance
to increase television's usefulness to the public. How to
accomplish this goal is the problem. This creates the first
issue. Should the FCC regulate digital television with
rules requiring compliance with minimum standards or just
furnish recommendations to the stations?
‘www. bettertv. org/ background. html
_-. -- ..- ,... -.. -.--. - .^ .__ “. -.,.. .I.... ix--.”
154
Normally I would be against governmental regulation of
an industry. I support it here for two reasons. First the
broadcasters received a windfall in garnishing the digital
spectrum for free under the 1996 Telecommunications Act.
Second, television has become America's most important
information medium*.
My first principle relies largely on the idea that
Congress gave the airwaves to the stations, so the stations
owe Congress, and thus the people. If broadcasters wanted
the freedom to air whatever show they wanted to air, in
whatever format they wanted to, they should have purchased
the digital airwaves. The FCC has the right and the duty to
impose rules and regulations on what the stations can air.
The second reason is policy based. Since its inception
television has become more and more important as an
information tool. One study found that ‘69 percent of
Americans say TV is the most trusted source of
information." 3 This is only for information and news, think
of how many people just watch for entertainment. Children
are targeted also. Starting at 3: OOpm everyday, Fox starts
two hours of programming aimed exclusively at elementary
school and pre- school age children. As a powerful influence
’ www. bettertv. or, g/ background. html
155
upon all Americans, broadcasters have a duty to serve the
public interest.
The major guideline that television stations must
follow is ‘serve public interest." 4 Now that it is clear
that the FCC should regulate the broadcasters, what should
the FCC focus on? A very important issue is political
coverage.
As the 21” ’ century begins, the importance of increasing
political discourse and information available about our
representatives is obvious. Your own notice that I am
commenting on notes this importance by citing the Supreme
Court and other studies. 5 For that reason you asked for
suggestions on how to increase the broadcasting of political
shows and viewpoints.
The simplest option is to require broadcasters to give
an allotted amount of time to candidates during prime hours.
This would be a mistake for two reasons. The most prominent
is that a voluntary system works now. Your own report cites
the National Association of Broadcasters report, which
states that broadcasters devoted almost 150 million dollars
to political campaigns. 6 In a poll done on Super Tuesday,
almost half of the respondents surveyed said that local
4 1996 Telecommunications Act
’ 65 Fed. Reg. 4211,4216
6 65 Fed. Reg. 4211,4216
156
disabled. Here I think digital television is a great tool
to be used. The increased bandwidth will allow broadcasters
to air programs of higher quality and provide more access to
them. Since digital broadcasters have much more bandwidth
they can reasonably provide closed captioning, video
description, or other comparable means for the disabled.
People for Better TV wants stations to "provide closed
captioning and description services for the blind of PSAs,
public affairs programming, and political programming." '
They would like to see this implemented by 2006, at the
latest. g Currently mandatory closed captioning is being
phased in (finished around 2008.)
The FCC should adopt guidelines specifically relating
to the use of digital television to increase access for the
disabled. 2006 is not an unreasonable date and the FCC
should mandate that broadcaster meet this. The FCC should
constantly look to develop new services that digital
television could provide the disabled. Closed captioning or
comparable descriptive service should be available when
stations begin broadcasting in digital. Broadcasters were
given billions of dollars worth of airwaves; l' the least that
865 Fed. Reg. 4211,4214
96.5 Fed. Reg. 4211,4214
lo www. cme. or& xdCn. html
_” --. -. -l. l_-.----- l^ lII -_-.-
157
they can do is provide service to make it more accessible
for the disabled.
Another important goal for the FCC is increasing
diversity in voice and ownership of digital television.
Digital television provides an excellent opportunity to
increase the diversity of the voice on television. With
multiplexing, each local station could provide news coverage
focussing on different areas of the community.
Deciding where this could be done will be more
difficult. The FCC should not mandate that any or all
stations do this. Rather, wherever fiscally profitable this
would be an excellent way to increase the political, social,
and moral views on television. To spur this movement
incentives should be given to stations that multicast local
coverage. If viewers really want more diverse television
views it will be evident from the success or failure of
these secondary channels.
Finally, with the advent of digital television there
are some people who want stations to disclose more
information to the public on their affairs. Currently
stations must file "quarterly reports on their non-
entertainment television and children's programming." l'
People for Better TV want a more comprehensive survey
I1 65 Fed. Reg. 4211,4213
158
including electronic surveys and announcements." The
Advisory Committee asked for more standardized forms that
are easier for the public to understand." They also
recommend that the stations make this information more
available to the public.
I think that these measures are a waste of time and
money. During the 1980's the FCC vacated regulations very
similar to these. 14 There is no reason for them to reinstate
them. Almost everyday during the local news and during the
children's programming Knoxville affiliates tell me where
and how I can find the information currently required.
Making them put it on the Internet or including simplified
forms will not make me care anymore about it or make
television better. The best thing for the Commission to do
is maintain its current rules that apply to analog
broadcasts and apply them to digital ones as well.
Conclusion
The need to increase political discourse is false.
There is already a glut of national, state, and local
politics all over major networks, subsidiaries like CNN, and
local affiliates. Mandating that broadcasters allot a
I2 65 Fed. Reg. 4211,4213
I3 65 Fed. Reg. 4211,4213
I4 65 Fed. Reg. 4211,4213
__ -
. ___ I_^_-__ I--- x-- l ---.
159
certain amount of time to political views would be
pointless.
Many others would like to see stations disclose more of
what they do for the public. However the FCC already
decided in the 1980's that stations did not need to disclose
as much. Honestly, I have never heard of or known anyone
who went down to a station to check on their disclosures.
More regulation would just be a waste of time.
One area that should be regulated and could be done
with minimal intrusion is increasing access to television
for the disabled. Every station that provides digital
television should be required to provide enhanced closed
captioning or video description by 2006. The cost is
minimal and with a broader spectrum every digital station
should be able to meet minimal standards.
The broadcasters received a deal of a lifetime with
free digital airwaves. They accepted it and should accept
any regulation that FCC deems appropriate. However, because
broadcasters are more inclined to act for monetary reasons
than arbitrary rules the FCC should limit its mandates on
digital broadcasters.
Sincerely,
Robert Lee McElroy IV
._ _.__“. l_..._ l_. lll. l_, ._^,, .I -... -..-“ l--“__ 1____^ 1_
160
To: Magalie Roman Salas, Secretary- FCC
From: Shandry Castelow
CC: Professor Glenn Reynolds
Date: 03/ l 7/ 00
Re: Public Interest Obligations of Television Broadcast Licensees
Dear Secretary Salas,
In response to the FCC’s request for public comments, 65 FR 42 11, (January 26,
2000), I want to communicate my views as a television consumer who is concerned about
the business aspect of digital television. I am writing in opposition to new minimum
public interest guidelines that would be imposed on television stations.
Responding to the Communitv:
Minimum Public Interest Obligations:
Introduction and Background
As broadcasters transition to digital transmission technology, they encounter many
financial burdens and are faced with creating new ways to do business. In addition, the
Advisory Committee Report recommends that “[ tlhe FCC should adopt a set of
mandatory minimum public interest requirements for digital broadcasters . . . .” Some
members of the Committee reason that broadcasters have been given a free gift of
expanded channels and that many broadcasters would not voluntarily add public interest
__ _-._ .--..~--_-“-
161
shows. However, the marketplace offers sufficient incentives for stations to include
diverse public interest programming (e. g. the Internet). ’ Also, stations will be spending
millions of dollars to build new towers, to pay for electricity, and to secure the highest
technology in order to compete in the market. Many stations admit that they have no idea
if their investment will pay off, and they will have to look to sources other than
advertising for revenue because the current trend is toward commercial free
programming. In sum, far from digital television being a free gift, most broadcasters are
unsure of what options exist or how to become profitable after spending millions for the
upgrade. Instead of imposing one more mandate on the stations, the FCC should
encourage seamless transition into digital television.
An illustration may help to illustrate my concern. Many “mom and pop” stations are
selling the station rather than make the expensive transition. In Montgomery, Alabama,
David Woods, owner of WCOV- TV, only has a market of 219,000 viewers, He says that
he will have to spend 4.5 million dollars over the next three years to meet the transition
deadline. He states that spending that amount of money on equipment is “100 percent of
annual average revenue . .7’2
’ In an attorney’s summary of the Commission’s report, December 18, 1998, a core
concept of the report was that “information, voluntary self- regulation and economic
incentives are preferable to regulation.”
2 http:// www. digitaltelevision, com/ business998p. shtml
._. . ” _... _ _...._____^___ -- ----
162
FCC Should Focus on Economic and Technical Realities of Transition, Not New Public
Interest Requirements
While no exact dollar figure can be set, experts believe that it will cost between
$5 million and $12 million per station to make the [digital] change. And since
Congress has mandated that this be done by 2006, stations with limited budgets
have been struggling to find a way to comply. 3
The first concern is that while the larger companies have the budget to build towers and
the staff to oversee digital programming, smaller companies do not have these resources.
While presidents of ABC are contemplating live- action sports4 smaller companies are
struggling to negotiate loans with banks and to pay an increased energy bill every month.
For example, smaller stations fear that given increased competition from satellite
television and that digital television has yet to prove viable, banks will hesitate to
finance the venture. Also, with no cash reserve, a smaller company will have to find
collateral for loans. David Woods, owner of a small station calculated that if he borrows
$3 million for a transmitter, his expenses will increase $200,000 a year. So, he will have
to have other collateral for the loan because he cannot tell the bank that he will have
increased revenue. “It will actually decrease revenue.”
Another example is that once the digital signal is up, a station has additional energy
bills to keep it there. At WBNS in Columbus, Ohio, “the digital transmitter sucks up
3 http:// www. digitaltelevision. com/ business1298bp, shtml
4 http:// www. digitaltelevision. combusiness 1199p. shtml
5 Owner of a small station states that “in five years, what are you going to have that
people can’t get anywhere else ?” http:// www. digitaltelevision. com/ business998p. shtml
6 Id.
i - ..---_ _..,_.. -.-_^- c---- i” .“.----..“-
163
about $22,000 a month in energy costs” (as opposed to $5,000 a month for the analog
transmitter). ’ “’ That discrepancy is the worst combination, having V for your analog and
the U for your digital. ‘A Even though the station increased their viewers (although only
334 viewers watched a HDTV football game because not many people have receivers
yet), the station has petitioned the FCC “to broadcast the signal only intermittently, since
the station wasn’t required to have its signal up until November 2003.” 9 The owner
stated that “[ w] e turn it off once in a while. We realized what the operating cost was, so
there was no reason to run our transmitter at $22,000 a month.“”
The second concern is that even big stations are uncertain about the future of digital
television. Stations are trying a lot of new things to stay competitive in their market.
While advertising is usually a huge source of revenue for stations, the prediction is that
“digital broadcasting will deliver the final blow to commercials.“‘* Stations are trying
everything from real- time web casting with news broadcasts to technical advice for
HDTV makers in exchange for equipment use. 12 Stations are using a lot of their
resources to develop new business models while being completely uncertain of the
benefits.
’ Id.
* Id. This technical problem seems to be common.
’ Id.
lo Id.
I1 http:// www. digitaltelevision. com/ business199p. shtml
l2 Id.
164
For example, in a recent interview with Preston Davis, president of the Broadcast
Operations & Engineering division ABC:
DTV: Do you see a clear business model for DTV?
Davis: Your question assumes that anybody thought that there was going
to be a way to make money off of digital television [laughing]. I don’t.
We certainly didn’t go into this believing that that was necessarily the
case, and I think history will prove that it probably wasn’t. 13
The Marketplace Provides Sufficient Incentives to Respond To Communitv Needs
The Internet is a great model for and testament to the unregulated growth of an
industry. With viewers having choices of satellite, cable, and additional networks, the
market will encourage programmers to cater to their local community. Today, the trend
is toward specialization and niches that target a specific audience. My Internet Service
Provider regularly hosts exotic pet chat nights, The communications business is so large
that now minorities and once overlooked groups are being recognized as viable
consumers.
Also, as companies struggle to compete with so many other companies for viewers,
they have come up with completely innovative solutions such as delivering specific
shows at a specific times, Broadcasters have sought out the best available equipment so
that they can deliver the most data at the fastest rate and in several mediums. In fact, in
the race to deliver more information at a faster rate, stations look to the Internet for
answers. I4 And with lots of people communicating via e- mail, viewers have access to
reach their stations and voice their concerns and ideas.
I3 Id.
I4 http:// www. digitaltelevision. com/ business199p. shtml
165
Conclusion
New minimum public interest requirements are not necessary to drive broadcasters to
produce community service shows. Plenty of marketplace incentives exist such as the
Internet, competing markets, and public access. Also, broadcasters face enough
mandates and technical and financial burdens in their transition to digital transmission.
Extra requirements will burden already strained finances and resources, particularly small
stations. And specific requirements might actually keep new programming out of
broadcasting. For example, lots of small Internet companies catered to a specific interest
because they were economically and technically supported. If the small companies had
been regulated or if the Internet could only host certain sites, then maybe a new area
would not have been developed. Today, lots of web sites exist that respond to the
smallest of matters. I think any interest can be found on the Web. I think that digital
television should be given the same opportunity to grow.
Thank you for your consideration.
Cordially,
Shandry Castelow
. ,. -. I_.. . - ..-.. --.. l-.. l __. 1. - ---.-.- 1
166
To: The Federal Communications Commission
From: Nathan D. Sukhia
cc: Professor Glenn H. Reynolds
Date: 03/ 1 l/ O0
Re: Additional public interest requirements for digital television broadcasters
Dear Commission,
In response to your Notice of Inquiry, MM Docket No. 99- 360, (December 15,
1999), I want to communicate my views as a regular consumer of television broadcasting.
I am writing in opposition to increased public interest requirements for digital television
broadcasters. I trust that you have not ceased consideration of comments offered.
Introduction and Backpround
The President’s Advisory Committee on the Public Interest Obligations of Digital
Television Broadcasters (“ Advisory Committee”) and People for Better TV have
submitted recommendations on the public interest obligations digital television
broadcasters should assume. These recommendations are premised on the notion that
broadcasters have been given a gift of free additional spectrum with which to offer new
and potentially profitable services. Because this spectrum could have been auctioned to
support various public needs, the gift of additional spectrum brings with it increased
public interest obligations.
What Broadcasters have Received
Digital television has provided broadcasters the means to multicast (multiplex) or
datacast. When a digital broadcaster multicasts, that broadcaster provides more than one
167
program on a bandwith normally used for only one program, When a digital broadcaster
datacasts, that broadcaster uses bandwith not consumed by normal broadcasting to send
out data. Both multicasting and datacasting are considered ancillary benefits because
they are offered in addition to the main or foundation program. Of course, the most
obvious import of digital television is a digital picture that is of better quality than that of
a standard analog picture.
Public Interest Reauirements for Multicasting
Cutting through the technical terminology, the ability to multicast means one
thing: digital broadcasters have the option to operate two or more programs with only one
license. Except for the existence of an additional channel, the choice to exercise that
option will go unnoticed. When one changes the channel on one’s television, one may be
unaware of the fact that the program one is currently watching and the program one was
previously watching are actually coming from the same television station. To put it more
simply, the public will be unable to distinguish between a multicast and non- multicast
programming.
The public interest requirements currently placed on all digital and analog
broadcasters came into effect because broadcasters were provided a gift that incidentally
gave them a unique ability to benefit the public. If, as the Advisory Committee and
People for Better TV claim, that original gift has been increased or digital broadcasters
have been provided a better gift that requires increased public interest obligations, then it
seems that digital broadcasters must have also incidentally received a greater ability to
benefit the public. However, the greater ability to benefit the public is no where to be
found. The ability to multicast is nothing more than the ability to broadcast another
2
168
television program that has the same ability to benefit the public as any other digital or
analog program.
The fact that the ability to multicast bears no increased ability to benefit the
public is reinforced by a cursory examination of the public interest standards proposed by
the Advisory Committee and People for Better TV. With the exception of those
standards that target datacasting, the proposed standards can be as easily implemented
through analog broadcasting as digital broadcasting. Furthermore, and most importantly,
the proposed standards would have the same impact on the public regardless of whether
those standards were implemented through analog broadcasting or digital broadcasting.
As to multicasting, clearly the Advisory Committee and People for Better TV are
not motivated by the fact that digital broadcasters suddenly have at their disposal new
technology that can be used to better serve the public interest. Instead, they have, as
Commissioner Harold Furchtgottroth so plainly put it, “seized on this opportunity to
wring as many concessions as possible out of broadcasters. The [Advisory Committee
and People for Better TV] do not appear to require any particular linkage between the
proposals and the transition to DTV.” Because the Advisory Committee and People for
Better TV are unable to demonstrate any link between their proposals and an increased
ability to serve the public, their proposals should be rejected. Furthermore, because it is
impossible to demonstrate that the ability to digital multicast bears an increased ability to
benefit the public, the Commission should refrain from altering the standards that are
currently in place.
As the D. C. Circuit stated in 1969, “in applying the public interest standard to
programming, the Commission walks a tightrope between saying too much and saying
3
- ..- .-.-. __-..._. -I .” _ - ..--. “.““-. ..--~ 11_
169
too little.“ ’ The Commission must walk that tight rope because it must “minimize the
dangers of censorship or pervasive supervision.“ 2 The United States Supreme Court has
made that tight rope even slimmer by pointing out that the notion that broadcasters can be
regulated because they are the only source of information has come and gone. 3 “In most
areas [the FCC] has resolved the dilemma by imposing only general affirmative duties
- e. g., to strike a balance between the various interests of the community.“ 4
By statute, the Commission is required to “apply to any other ancillary and
supplementary service such of the Commission’s regulations as are applicable to the
offering of analogous services by any other persons.“ 5 As to multicasting, the analogous
service is clearly standard analog broadcasting. The courts have affirmed that public
interest requirements for analog broadcasting meet Constitutional as well as statutory
requirements. The Commission should be very reluctant to dispose of public interest
requirements that have passed Constitutional and statutory muster and have fixrctioned
well, when there is no reason to do so.
Public Interest Reauirements for Datacasting
Datacasting, as distinguished from multicasting, is completely different from any
other broadcasting formerly regulated by the FCC. Datacasting has enormous potential
to offer the public such things as CD quality music, personalized stock quotes, and so on.
Indeed, it is unclear what broadcasters may choose to do with their bandwith that is not
consumed by multicasting because at this point, the possibilities are endless.
’ Banzhufv. FCC, 405 F. 2d 1082, 1095 (D. C. Cir. 1968).
z Id.
‘See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969).
4 Banzhafat 1095. (emphasis added).
’ 47 U. S. C. $ 336( b)( 3) (emphasis added).
4
170
In order to retain their license, broadcasters are required to apply to build DTV
facilities, be granted a construction permit, and then complete construction, all of which
costs millions of dollars. Although stations are required to broadcast one free television
program service of a quality at least equal to that of a standard analog signal, broadcasters
are permitted to receive payment for advertising on the free program that will allow them
to recover the cost of operating the required free program. Broadcasters are then
permitted to either multicast or datacast on excess bandwith for a fee, less the 5% charge
established by the Commission. Fee broadcasting will allow broadcasters to recover the
cost of building a digital television station. Thus, the ability of a broadcaster to recover
the cost is largely dependent on the development of financially viable datacasting and
multicasting.
In order to multicast, digital broadcasters must develop programs in addition to
the foundation program. Thus, broadcasters that were operating only one analog program
must find the financial means to operate two, three, or even four digital programs in order
to derive income from multicasting. Because digital broadcasters will be reeling from the
cost of building a new digital broadcasting facility, many may be unable to finance the
startup and maintenance costs of additional programs. On the other hand, datacasting
will undoubtedly have much smaller startup and maintenance costs. Thus, in the early
stages of the conversion to digital television, broadcasters will inevitably turn to paid
datacasting to recover the cost of a new digital station.
As previously stated the Commission is by statute required to “apply to any other
ancillary and supplementary service such of the Commission’s regulations as are
5
171
applicable to the offering of analogous services by any other person.“ 6 Thus, the public
interest requirement for datacasting is dependent on the type of data being cast. Because
the Commission has not previously regulated such data, it will have to develop
specialized public interest requirements for each new type of data that broadcasters
choose to cast. However, at this time it is uncertain just what type of data stations will
choose to broadcast. Because, at least initially, digital broadcasters will be largely
relying on datacasting income, the form of datacasting will be particularly market driven.
The Advisory Committee and People for Better TV would have the Committee
apply sweeping public interest requirements for datacasting. The public interest
requirements proposed by both organizations would be particularly taxing for newly
created digital broadcasting stations because they will inevitably decrease income that is
and will be so desperately needed, especially before digital television is embraced by the
public. In particular, stringent public interest requirements at the outset may frustrate
broadcasters financial ability to experiment with new and innovative uses for datacasting.
Finally, the proposals, although sweeping, provide little if any actual guidance as to how
public interest requirements will be implemented because neither organization knows just
what forms of datacasting broadcasters may choose to implement. For these reasons, the
Commission should reject the proposals of the Advisory Committee and People for Better
TV.
The Commission should decline to apply public interest standards to datacasting
until recognizable forms of datacasting come into existence and become financially
viable. By so doing, the Commission will allow market principles, rather than FCC rules,
to drive the development of datacasting. This works to the advantage of the public
’ 47 U. S. C. 8 336( b)( 3).
6
- ” I I ..--. -.- ^.r .. --... I “” -_._- __-_~-_- ..I _
172
because public interests can only be served through sustained datacasting, and datacasting
can only be sustained if it is allowed to become and remains economically viable. Once
forms of datacasting are developed and it is apparent they will be sustained, the
Commission will be better situated to understand just what public interests datacasting
can benefit. In addition, at that time the Commission will be better equipped to
determine what if any presently regulated services is analogous to the datacasting in
question so as to meet statutory requirements.
As the Supreme Court stated, the public interest standard is “a supple instrument”
designed to be flexible enough to accommodate the “dynamic aspects of radio
transmission . . ..“ ’ Accordingly, the Commission should not, out of fear that it might fall
behind the public interest rulemaking curve, rush to set standards for forms of
communication that have not yet solidified. Additional rulemaking will always available.
Conclusion
The Commission should not adopt additional public interest requirements for digital
broadcasters at this time. Multicast programs are not significantly different from
traditional analog programs and because they cannot provide the public greater benefits,
they should not have to meet a greater public interest standard. In addition it is uncertain
just what forms of datacasting broadcasters will choose to utilize and will become
financially viable to utilize. Finally, additional public interest standards will place an
unnecessary financial burden on digital broadcasters at a time when digital broadcasters
are particularly financially vulnerable.
’ FCC v. Postville Broadcasting Co., 309 U. S. 134, 138 (1940).
7
173
To: Magalie Roman Salas, Secretary- FCC
From : Robert L. Vance
cc: Professor Glenn H. Reynolds
Date: 03/ 17/ 00
Re: Comments on Proposed ‘Public Interest Obligations of Television Broadcast Licensees" Regulations
Dear Secretary Salas,
I am writing in response to the FCC's request for comments,
65 FR 4211, (January 26, 2000), on broadcasters' public interest
obligations during and after their transition from analog to
digital television (‘ DTV"). As an avid television watcher, a
parent, and law student, this issue both interests and concerns
me. While I recognize the importance and benefits of community
service by broadcasters, I do not believe that excess government
regulation is the proper method for obtaining this service. I
feel that the open market, along with minimal government
regulation, can make DTV a valuable asset for serving the public
interest. Specifically, I propose that, at the very least, no
new public interest obligations be imposed on broadcasters and
that broadcasters have the choice of which program streams they
will use to fulfill their existing obligations to broadcast
children's programming and programming that serves local needs.
In proposing this choice, I am not referring to broadcasters'
obligations to utilize closed captioning or to provide equal
access to political candidates.
_._ __.. .- .- _ .-.-.l ...
_-- ._._-_ ...- X-- t-_ llllll -.--
174
Introduction
Imposing public interest obligations on broadcasters should
serve the goal of providing access to programming that educates
and informs about public affairs to those people who want access
to this type of programming. This goal should not be confused
with the goal of forcing viewers to be interested in "public
interest" programming. The FCC needs to keep this distinction in
mind when considering the public interest obligations it will
impose on broadcasters as they make the transition to DTV. While
the FCC has a legitimate interest in promoting access to
different types of programming, it should not be in the business
of attempting to force viewers to watch programming the
government has determined is beneficial to the public.
Digital Television will allow broadcasters to give viewers
more choices in deciding which programs to watch by offering
television stations more program streams over which they can air
their broadcasts. Broadcasters should be given the discretion to
fulfill their obligation to air public interest programming on
whichever of these streams they choose, as long as viewers have
access to those streams. (As stated above, this does not include
broadcasters' obligations to utilize closed captioning or to
provide equal access to political candidates). If the viewer can
gain access to the public interest programming, the FCC has
achieved its goal. Requiring broadcasters to fulfill their duty
to air public interest programs on each program stream can only
175
serve the goal of forcing viewers who are not interested in
watching ‘public interest" programming to choose between watching
government imposed programming and not watching broadcast
television at all. Rather than promoting DTV as a tool for
serving the public interest, these regulations could have the
unintended consequence of chasing viewers away from broadcast
television altogether.
Another point that the FCC should pay attention to when
considering these regulations is the operation of the free
market. In a free market system, the consumer ultimately decides
which products will be available. The government does not have
to tell the manufacturer what products to make. The manufacturer
makes the products that consumers are buying.
The free market is equally suited to determine which
programs are shown on television. Broadcasters want people to
watch their programs. They have long realized that the way to
achieve this goal is to broadcast programs that people want to
watch. If the public is interested in a program, broadcasters
will naturally broadcast that program. Digital television will
not change this obvious dynamic. If DTV can enable broadcasters
to serve the public in new and better ways, and the public wants
this service, broadcasters will respond without government
intervention. Therefore, I believe that, at the very least, no
new public interest obligations should be imposed on broadcasters
as they change over to DTV.
176
Children's Programmina
When broadcasters air programming that benefits children,
the public interest is definitely served. Children in the United
States gain large amounts of information by watching television.
I believe that the public has an interest in making sure that
suitable information is available to children on broadcast
television. However, I also believe that excessive government
regulation is not the proper means for ensuring this
availability.
Broadcasters doing business in the free market realize that
a large portion of their audience is children. Broadcasters want
people to watch their programs and they realize that children
like to watch children's programs. These considerations
obviously contribute to the decisions broadcasters make when they
choose to air children's programming right after school hours and
on Saturday mornings. The desire to appeal to a target audience
and the attempt to get that audience to watch their programs are
probably the biggest motivating factors causing broadcasters to
air children's programming during these hours.
Of course, the public interest obligations imposed on
broadcasters by the government to air children's programming may
also play a part in their decision to broadcast these shows.
However, I believe that the motivation these obligations provide
is secondary to the motivation created by the free market.
Broadcasters air children's programming because children provide
_ _ _. __-_ .^ l_, ll ._________ -.-.“ lll_..__ l_.-.
177
a valuable market. Currently, broadcasters are required to air
only three hours of programming that is beneficial to children
per week, yet many broadcast stations exceed this amount in a
single day. The reason broadcasters exceed their obligations is
that children watch television and broadcasters want to take
advantage of an available audience. The popularity of cable
stations aimed solely at children, such as Nickelodeon and
Cartoon Network, provide additional evidence that children are an
audience worth pursuing. Children also happen to like shows that
can be considered educational. This means that broadcasters have
a reason to air these programs even without government
intervention.
Since children's shows are extremely popular and
broadcasters like to air popular shows, broadcasters would most
likely air these shows even if the government did not require
them to. The goal of the FCC in imposing obligations to air
children's programming should be to make sure that children have
access to such programming. Since children have this access
under the current regulations, I do not believe that new
obligations to air children's programming should be imposed on
broadcasters as they switch to DTV.
In addition, I believe that broadcasters should be allowed
to choose which program streams they will use to fulfill their
obligation to broadcast children's programming once stations
change over to DTV. I do not think that broadcasters should be
.-. - “.. - .“-- .._.. , .I__^”
._^_ l. l__ -11- ,..- I - ~, ---.
178
required to broadcast children's programming on every stream, as
long as all of the viewers in the broadcast area have access to
the stream on which the broadcaster is fulfilling its obligation
to air children's programming. The fact that the broadcaster is
making children's shows available to children should satisfy the
public interest in this area.
Children are very sophisticated viewers in
Sunday mornings, my three- year- old can, without
many ways. On
my help, find the
station that is airing a children's show when :a11 of the other
stations are airing talk shows. I do not think that the switch
to DTV and the availability of additional programming streams
will hamper his effort to find these shows. In fact, allowing a
broadcaster to use only one of its programming stream to fulfill
its public interest obligation to air children's programming
would make matters less confusing for children, since their shows
would all air on one channel. However, I do not think that
broadcasters should be required to air children's programming on
only one stream any more than I believe broadcasters should be
required to air children's programming on all streams. The
demand for children's programming after the transition to DTV may
be such that broadcasters feel compelled to offer more children's
programming than they offered with analog technology. The free
market, through the viewer, should dictate how many program
streams are dedicated to children's programming. In other words,
children should ultimately decide how and where children's shows
-... _. __ ” _ -... __-. ^.. .l-.- l.- _ -.-..- 1__ 1-_---- .^
179
are broadcast, not the government.
I believe that under the current regulations, broadcasters
have shown a commitment to broadcast children's programming.
Under these regulations, children can watch hours of children's
programming every day on broadcast television. I believe that
DTV will improve children's access to shows without requiring
broadcasters to air these shows on each of their program streams.
In addition, I believe that this requirement would be unfair to a
large portion of the public that broadcast television is supposed
to serve. Many viewers do not have children and are not
interested in children's programming. Requiring a broadcaster to
air children's programming on each of its streams will take
valuable air time away from this large segment of viewers.
People will actually be denied one of the greatest benefits that
DTV should provide. This benefit is variety. The government
should be satisfied when its goal of providing children access to
appropriate programming is achieved. This goal of access will be
achieved in a fair manner by allowing broadcasters to choose
which program streams they will use to fulfill their obligation
of broadcasting children's programming.
Serving Local Needs
Another public interest obligation of broadcasters with
which I am concerned is broadcasters' obligation to service the
local needs of their communities. As in the area of children's
broadcasting, I believe that no new obligations should be imposed
180
on broadcasters as they switch to DTV. If viewers are interested
in this type of programming, broadcasters will air it.
The term "public interest obligations" suggests that the
public is interested in this type of information. Since the goal
of broadcasters is to get people to watch their programs,
broadcasters obviously want to air programs that are interesting
to viewers. Broadcasters compete with other broadcasters in
their area. If viewers are interested in public affairs and
information about their community, they are going to watch the
station that offers the most programs containing this
information. The government does not need to impose new
obligations on broadcasters to air more programming that serves
local needs. If the community wants more of this type of
programming, broadcasters will air it if they have the technology
to do so.
The goal of the FCC in this area should be to ensure that
broadcasters provide access to information about local concerns
to the community. Since broadcasters using DTV will have the
capacity to broadcast over more than one program stream, they can
provide access to a wider variety of shows. Broadcasters should
be allowed to fulfill their obligation to air programs that
service local needs over whichever of these streams they choose.
Under this system, viewers who are interested in local
information will have access to that information, and viewers who
are not interested can choose to watch something else aired by
181
the same broadcaster. By requiring broadcasters to air "public
interest" information on all available streams, the FCC may
inadvertently chase viewers away from broadcast television
altogether. Broadcasters must compete with cable and satellite
television, both of which offer vast amounts of variety. Digital
television will allow broadcasters to be more competitive with
these companies by allowing them to provide more variety as well.
Allowing broadcasters to choose the program streams over which
they fulfill their public interest obligations will both provide
the desired access to public interest programming and allow
broadcasters to offer and take advantage of more variety. With
proper regulation, DTV will enable broadcasters to offer more
information about local concerns without the fear of chasing away
those viewers who are not interested in this type of programming.
Conclusion
I believe that children's programming and programming that
provides information about local concerns are important services
offered by broadcasters. I also believe that the FCC has a valid
interest in ensuring that broadcasters continue to serve the
public as they make the transition from analog to DTV. However,
I do not believe that excessive government regulation is
necessary to achieve this goal. The free market and viewers'
interests should dictate the programs aired by broadcasters.
Digital television will offer broadcasters new opportunities to
better serve the public. If the public wants this service,
182
broadcasters will make sure that it is available. Therefore, I
propose that no new public interest obligations be imposed on
broadcasters as they switch to DTV and that broadcasters be
allowed to fulfill their existing obligations on whichever
program streams they choose.
Robert L. Vance
183
To:
From:
cc:
Date:
Re:
William E. Kennard, Chairman- FCC
Kenneth H. Berry, Jr.
Professor Glenn H. Reynolds
03/ l 7/ 00
Comments on Proposed Rule- making for Broadcaster’s Public Interest
Requirements in the Age of Digital Transmission Technology
Dear Commissioner Kennard,
In response to the FCC’s request for public comments, 65 Fed. Reg. 4211, (January 26,
2000) I wish to express my views as a citizen that our system of financing elections - local,
state, and federal, is dysfunctional. It is dysfunctional principally because of the corrosive effect
of money in politics. Your efforts to review the role that television broadcasters should ideally
play in our democracy are commendable. It is heartening that the FCC keeps an open mind
about the issues it raises in the proposed rule- making, especially considering the many attacks
made upon the FCC’s jurisdiction by the Republican majority in Congress. I am writing in
strong support of the requirement that television broadcasters must contribute free air time to
political candidates and parties. My focus will be upon federal candidates but a strong case
exists that the requirement should extend to candidates for state and local offices as well.
Introduction and Background
I wholeheartedly support the recommendations made by former FCC General Counsel
Geller and others on the Advisory Committee that licensed broadcasters should be required by
the FCC to provide free air time before elections. Unlike the views of some, I argue that the
FCC has the regulatory authority to accomplish this exceedingly modest approach right now
1
184
K. H. Berry, Jr., 3/ 17/ 00
without further statutory enactments. Furthermore, I will point out several other proposals that
are far more ambitious in reach and breadth.
Commissioner Kermard, I must admit that it takes a considerable amount of willpower
on my part to refrain from launching into an in- depth recitation of the chamber of horrors that
campaign financing resembles. I take solace in the knowledge that the FCC is well aware of how
much valuable time, effort, and money is wasted raising funds before, during, and after each
election cycle by candidates at probably every level of elective office. You are also well aware
that the overwhelming proportion of treasure expended in this regard, is expended in the hunt for
dollars to produce commercials and buy television air time.
Unfortunately, politicians have few alternatives to television for effectively spreading
their message. Americans are a nation of television viewers. Some might say a nation of
television addicts. Be that as it may, digital technology will only exacerbate the problem of too
many politicians chasing too many bucks. New digital technology promises to make access to
the airways even easier because of the multiplication of available signals, thus politicians will
feel driven to put on more spots, which means they will need more money. We face a real risk of
the money chase getting more heated not less. It is time to take action and the FCC can and
should take the actions outlined below.
What can be done and under what authority
What can the FCC require that broadcast licensees do to fulfill their public interest
obligations? Suggestions run the gamut from nothing to coerced devotions of large segments of
prime time to ail candidates and parties. Besides Mr. Geller’s recommendations specifically
2
185
K. H. Berry, Jr., 3/ 17/ 00
mentioned in the proposed rule- making, we can group most suggestions under two broad
categories.
First, the simplest and least objectionable category includes variations on the theme
proposed by Mr. Geller and others. Namely, broadcasters have a duty to “promote a core value
of public interest,“* which they can fulfill by providing blocks of free air time during the
broadcast day. What differentiates the varieties of the “Geller scheme,” if you will, is how much
time broadcasters should allot, in what increments, provided to whom, and at what point during a
campaign. Subtler refinements of the Geller scheme even address such topics as production
value and content, e. g., only the candidate speaking and no surrogates, no background music.
A second, and more progressive, category is the notion of the “time bank.” In a time
bank approach, networks grant candidates a set amount of air time that the candidates can opt to
use whenever wanted. Usually in this approach the “minutes” in the time bank are weighted so
that, for example, prime time minutes are “worth,” say, twice that of early morning minutes.
Another time bank approach would involve the FCC assessing fees of one sort or another on
broadcasters, which they would pay into a fund that the agency would then use essentially to
‘/ Henry Geller, Article: Public Interest Regulation in the Digital TV Era, 16 Cardozo
Arts & Ent L. J. 341 (1998). In this article, Geller makes essentially the same proposal as that
credited to him in the proposed rulemaking. In any event, Geller stresses the importance that
“the broadcaster contribute to an informed electorate through . . . political broadcasts,” citing the
public service requirements of the 1934 Communications Act. While others have characterized
this public interest requirement as almost Jeffersonian in nature. See, e. g., Jeffrey A. Levinson,
An Informed Electorate: Requiring Broadcasters to Provide Free Air time to Candidates for
Public UfJice~ 72 B. U. L. Rev. 143 (1992) (wherein he states that “requiring _ . broadcasters to
provide free air time . . . would best promote Jefferson’s idea of ensuring that Americans are
informed and. in [Jefferson’s] view, free.”
3
“. _. _ .__^ .- ^. _ -..-- _...___ I . ._.- -..--.-. -
-.I _
186
K. H. Berry, Jr., 3/ 17/ 00
“buy” time for candidates.
In both of the standard models under consideration, debate continues to rage over whether
broadcasters should provide time solely to “major” candidates or should they also accord some to
political parties as entities to divvy up and distribute as they see fit. In any event, the participants
in these debates have not even settled the fundamental question of what is a “major” party or a
“major party candidate.”
Having sketched in these broad outlines, I would like to commend to your attention
several specific recommendations to implement free air time. Afterwards, I will make a personal
pitch for my favorite and then move onto the next topic that you solicited commentary on: What
authority does the FCC possess to do any of this?
*Been there - done that: In 1996 advocates of free air time persuaded some of the
nation’s major broadcasters to offer two of the presidential candidates some one to two- and one-
half minute segments. Another major broadcaster, ABC, offered them, however, an entire prime-
time hour on the eve of the November election - both refused.
3The 5- percent solution: Also in 1996, Your predecessor at the FCC, Reed Hundt
recommended that broadcasters “devote ‘a modest 5 percent of programming time’ on digital
TV.” Specifically, he stated that broadcasters should apportion this 5 percent between
*/ Channeling Injluence, The Broadcast Lobby and the %70- Billion Free Ride, How Free
Air Time for Federal Candidates Can Be Achieved, at 2 or 5,
. -
3/ Id. at 4 of 5.
4
187
K. H. Berry, Jr., 3/ 17/ 00
“educational TV and free time for candidates.” Interestingly, he posited that the increased digital
spectrum allowed for even including state and local candidates within the 5 percent plan. In
1996 numbers this approach would today yield about 1,750 hours of free digital air time every
year. Unfortunately, Hundt has not sketched out his idea in any greater depth. But it does not
require a perceptive genius to envision the FCC directing each national digital broadcaster to
make available to each major party a fair proportion of the 5 percent. In this way, the networks
could hand off the thorny problem of which candidates at what level they should allot time.
Putting the national parties on the hook to work out the problem with their state affiliates and so
on down the food chain with each affiliate dealing one- to- one with a broadcaster’s affiliate might
put meat on the bones of Hundt’s proposal. 4
A five- minute fix: Former journalist and now campaign finance reform gadfly Paul
Taylor has proposed that presidential candidates should receive “five minutes of free air time on
alternating nights, to be carried by all radio and television stations, for the last five weeks of the
campaign.“ 5
Two modest proposals: In recent Congressional history, members have proposed many
different plans for free air time. Two such representative proposals, one each from the House
and Senate, called for “broadcasters to provide free air time for the 45- days before the general
4/ 0ne statistical tidbit of which you may not be aware is that as of 1991, every
industrialized nation in the world, save the United States, Norway, and Sri Lanka provided some
free air time to parties. Id.
5/ Levinson. 72 B. U. L. Rev. at 150 & n. 22.
5
188
K. H. Berry, Jr., 3/ 17/ 00
election to all legally qualified candidates for president, vice- president, senator, and
representative,” and as a condition upon “broadcast license renewal [that broadcasters should]
provide at least two hours annually ‘to the national organization of each qualified political party’
and the “state organization of each qualified . . . party of the state within which the
preponderance of the station’s audience resides.“ 6
Of course, any of the foregoing, in addition to Geller’s recommendation, is far preferable
to the status quo. However, my specific recommendation in this category of Geller schemes is
drawn from a piece of legislation first proposed by then Senator Al Gore, Jr., in 1988.7 Gore’s
bill provided that “broadcasters . . . give thirty minutes per week during prime time . . . for the
major party presidential nominees . . . in the next to last month before the election. During the
. . . last month, the . . . allotment would be raised to one hour, and in the final week . . . one and
one- half hours.” The relative beauty of Gore’s plan, and we are talking about which of the seven
dwarves, so to speak, is prettier than the rest, is that it also provides time for house and senate
candidates. They would get 5- 10- 30 minutes each per week in the next to last month before- last
month before- week before an election.
8A Piggv Bank Approach: As mentioned above, the second category of proposals
includes those calling for broadcasters to create time banks. This technique would have media
b/ Id. at 15 1 & nn. 24- 25.
7/ Id. at 158 & nn. 19, 52- 58.
‘/ A great discussion of these and other proposals can be found in Reed Hundt, Article:
The Public 3 Airwaves: What Does the Public Interest Require of Television Broadcasters?, 45
Duke L. J. 1089. 1105- 09 (1996).
6
189
K. H. Berry, Jr., 3/ 17/ 00
donate air time from which candidates could withdraw during their campaigns. Two specific
plans Reed Hundt has discussed are worthy of further consideration:
[O] ne approach would be to grant each eligible candidate a right
to a specific dollar amount of free time. Candidates would then
negotiate with broadcasters for advertising time, just as they currently
do, but would pay with time bank credits rather than actual dollars.
Why would broadcasters accept credits? Because they would be
required to provide free time worth, say, 2% of their annual advertising
revenues as a condition of using the public airwaves for free.
Another approach to which he alludes is one first proposed by columnist William Safire.
One aspect of this suggestion is that the FCC can “offer bidding credits to broadcasters [who]
could decide to reduce the cash price of their licenses by agreeing to provide “in kind” public
service.”
Does the FCC have rule- making authority for any of these proposals?
Yes, is the short answer to this question. Although there is a school of thought that
provisions of the sort discussed in this comment are clearly violative of, among others, the First
Amendment rights of the broadcasters. 9 While others might argue that the types of reforms
covered herein require statutory cover. lo Still, most commentators, including Hundt and Geller,
have concluded that the FCC has within its power to review licensing, the additional power to
‘/ See, e. g., Douglas C. Melcher, Note: Free Air Time for Political Advertising: An
Invasion of the Protected First Amendment Freedoms of Broadcasters, 67 Geo. Wash. L. Rev.
100 (1998).
‘O/ See e. g., Levinson, supra at note 1; Susanna M. Zwerling, Note: Reclaiming a Public
Resource: TAe C’onstitutionality of Requiring Broadcasters to Provide Free Television
Advertising Time to C’andidates for Federal Ofice, 18 N. Y. U. Rev. L. & Sot. Change 213
(1991).
7
190
K. H. Berry, Jr., 3/ 17/ 00
attach qualifications to granting those licenses. It derives this power from its congressional
mandate to regulate broadcasters according to the “public interest.” In fact, the President in an
address in 1997 to a conference held at the Annenberg Public Policy Center on the subject of free
air time stated that “I have supported the idea of free TV time for many years . . . [and][ e] ver
since the FCC was created, broadcasters have had a compact with the public: in return for the
public airwaves, they must meet public interest obligations.” Later in this address the President
also stated: “I believe broadcasters who receive digital licenses should provide free air time for
candidates, and I believe the FCC should act to require free air time for candidates.” Reed Hundt
has repeatedly talked about how the FCC “has the power, the precedent, and the procedures to
assure free access to the airwaves.” The current administration has reiterated its belief that free
air time is a public interest obligation and consequently subject to FCC regulation.
I argue that President Clinton, Hundt, Geller, et. al. are on strong ground when they argue
that the FCC can regulate free air time. The agency derives this authority from both the old
Communications Act of 1934 and the new Telecommunications Act of 1996.” Furthermore, the
agency derives solid support from the Supreme C~ urt.‘~
Conclusion
l ‘/ The Telecommunications Act specifically states: “[ nlothing in this [Act] shall be
construed as relieving a broadcasting station from its obligation to serve the public interest,
convenience, and necessity.”
‘*/ See, e. g., Red Lion v. FCC, 395 U. S. 367 (1969) (where the Court held the FCC’s
public interest authority included the adoption of the fairness doctrine and that the public owns
the broadcast spectrum and their interest should be served.)
8
-. ^ I_- __._ ___” __,-. “. ._ _ .-._-^ ll--......-. _---.. T. 11”. ---.. -
191
K. H. Berry, Jr., 3/ 17/ 00
Nonstop fund- raising is a problem that besets modern day politics. Politicians need
money in ever larger quantities because to compete they feel they must advertise. They feel they
must advertise on television to capture the attention of the bulk of the electorate. Our national
broadcasters claim countless billions in advertising dollars from politics but many thoughtful and
concerned observers contend that this mess can be cleaned up. The shovel with which these
reformers wish to clean out the stables is the public interest obligation broadcasters must fulfill to
retain their licenses. These reformers argue that the FCC can through its rule making authority
require broadcasters to donate free air time to political candidates. Many different sources have
forwarded many different suggestions to enact this reform. Examples of the two broad categories
under which most of these suggestions fall include mandating blocks of time or time banks.
One of my purposes for writing this comment is to support the proposal of Henry Geller
and to propose several others. Another of my purposes in writing, is to lend support to the voices
of those who would argue to you that Congress has enabled the FCC to make rules governing
granting free air time to political candidates. Therefore, I urge you to give great weight to Mr.
Geller’s proposal and those I have mentioned herein.
Respectfully,
192
William D. Hood
Administrative Law
Professor Reynolds
Spring 2000
Introduction
In response to the Federal Communications Commission’s request for public comments
entitled “Public Interest Obligations of Television Broadcast Licenses”( FCC 99- 390; 47 C. F. R.
Part 73), my views are described below. I am a second year law student at the University of
Tennessee College of Law. I feel that Digital Television technology offers a unique opportunity
to increase the quality of television for all Americans. The transition by many broadcasters from
analog service to a digital one provides the Federal Communications Commission an opportunity
to promulgate and expand the existing public interest rules. By clarifying the public interest
obligations of broadcast licensees specifically in the areas of emergency warnings, political
discourse, services to the disabled, and educational programming, digital television technology
has the potential to be one of the most significant technological advances enjoyed by all
American viewers.
Emergency Warning System
Television has long been the first warning for many Americans in times of impending
disaster or emergencies. Many viewers are familiar with the “Emergency Broadcast System,” its
alarm, and the running line of text that accompanies these warning at the bottom of the television
screen. Although these are tremendous advances, with the advent of digital television,
broadcasters should be encouraged to go farther and develop a more comprehensive warning
system. Paragraph eighteen (18) of the request for comments quotes the Advisory Committee as
saying “digital technology will provide innovative and new ways to transmit warnings, such as
__ _“._ .,. ._.----..- 11. ‘“_ 1 .“_.~ I --. ”
193
pinpointing specific households or neighborhoods at risk, and suggests that digital television
broadcasters take advantage of these technological advances.” Not only do I agree, but I also
would propose that the broadcasters make greater technological advances that include providing
safety information specific to the particular area as well.
One of the biggest problems with the present Emergency Broadcast System is that the
information provided to viewers is vague and nonspecific. Many television viewers discover that
the county in which they live is part of a larger area that is under some type of a warning for
potentially damaging or harmful events. The warnings typically create three types of responses
in viewers. The first is one of apathy. This type of individual reasons that since every other time
a warning is issued he or she is never affected. As a result, this individual does little to prepare
for the impending danger. The second type of individual is the cautious one. The cautious
individual immediately begins taking precautions once the warning is issued to ensure that he or
she is safe should danger come his/ her way. The third type of viewer is a combination of the
previous two and reacts in the same way depending on their individual assessment of what is
going on before deciding how to respond.
All three types of individuals would be better served by the technological advantages of
individualized warnings and safety information that digital television make available. The
apathetic viewer would be informed only when he or she is at risk. On the other hand, the
cautious would know when not to panic. Furthermore, by including safety instructions, both
types of individuals would be better prepared to confront whatever potential danger for which
they are at risk. Targeted information should include information on how best to prepare for the
potential effects of a storm. It could include evacuation information if necessary. If at all
2
194
possible, the information could include the location of shelters and aid facilities closest to the
area in which the viewer resides. By providing such information the viewer is better informed on
how to deal with the situation at hand and can best be best prepared how to avoid a potentially
harmful event. When confronted with the potential of damaging weather, I feel confident in
saying that most Americans turn to their television for information. In this age of vast
technology, such as digital technology, broadcasters should be required to provide the best
possible warning devices at their disposal.
The costs of such added benefits seem to far outweigh any additional burden that would
be placed on broadcasters. This is confirmed by the Advisory Committee’s Report finding cited
in paragraph eighteen (18) that “most of these innovations will require only nominal use of the
six megahertz (6 MHz) bandwidth allocated to digital broadcasters. Potential arguments against
the above proposals probably would fall along the lines of undue cost and increased potential for
mistake. All of these problems, though, are outweighed by the public good and are well within
the Federal Communications Commission’s statutory requirement to “serve the public interest,
convenience, and necessity.” Further complicating the implementation of such a policy is the
question of whether such technology now exists. If not, then the Federal Communications
Commission in cooperation with FEMA should promote the development and phasing in of such
programs within a certain period of time.
Political Discourse
My second subject for comment deals with those requested on the potential for
broadcasters to be used to promote political discourse. As is stated in paragraph thirty- four (34)
of the request for comments, and accepted as true by this writer, the Federal Communications
3
195
Commission has interpreted the public interest standard to include political campaign
programming. The request for comments also correctly states the effect television has on
political discourse and apathy in the quoted material from the Supreme Court in the same
paragraph. Both of these statements point to a greater responsibility for broadcasters in political
discourse. The request correctly concludes that a majority of Americans rely on television for
their news and information. This being the case, no better medium provides an opportunity to
engage potential voters in one of their more important constitutional rights. Digital television
technology further this potential by making interactive information available while viewers are
watching their favorite programs. One can easily imagine such abuses as political slogans and
propaganda at the bottom of television screens while viewers are watching their favorite nightly
programs. Despite this potential for abuse, the availability of air time to potential candidates far
outweighs this possibility for abuse.
I support the recommendations made in paragraphs thirty- seven (37) and thirty- eight (38)
which would require broadcasters to provide a certain amount of time to each candidate for a
particular election each night. For example, as a general election draws near, broadcasters would
be required to allow the candidates for state Senator to speak. The following night, the
candidates for House of Representatives could speak. Inherent in this recommendation is that
certain parameters would be imposed that limited the amount of time available and how far
before each election the air time would be made available. Furthermore, using the selectivity that
digital television creates, one can imagine allowing local candidates for a specific district within
one community being able to speak to only the potential voters in that candidate’s district while
another candidate speaks only to his or hers. In meeting this requirement, broadcasters should be
4
196
left with the discretion to decide what candidates will be allowed to speak on a certain night and
at what time that night they will be allowed to use the air time. Finally, it seems well within the
Federal Communications Commission’s goal of having broadcasters serve the public interest to
have them provide air time. It also would appear to be a part of the broadcaster’s civic duty that
it should do so. Furthermore, ten minutes each night does not seem to be a substantial burden on
broadcasters in light of the potential good.
The broadcasters should also be required to provide air time for political advertisements
especially for local elections. In paragraph thirty- eight (38), the Federal Communications
Commission seeks comments on the proposal of former General Counsel Henry Geller to require
broadcasters to provide a certain amount of air time to candidates in advance of a general
election. I support this recommendation because of the positive effect it could have for local
candidates. Local candidates often find it hard to get their message to the voting public due to
the overwhelming cost of television advertisements. By removing this burden, candidates are
allowed to get their views to the public, and the public is thereby able to make a more informed
judgement. I agree with Geller’s suggestion that the licensees should be left to decide what races
are to be covered, but I also feel that the burden should be placed on the licensee to show why it
chose as it did. Finally, I fully agree with the Advisory Commission’s recommendation that the
Federal Communications Commission should prohibit broadcasters from making blanket bans on
the sale of air time to political candidates. (Paragraph thirty- eight) As is noted time and time
again, television is the major source of information for many Americans. To allow blanket bans
would undercut the broadcaster’s duty to promote the public interest. Broadcasters have a duty
to keep their viewers well informed of all events in the community in which they serve and this
5
197
includes political discourse.
In making this comment, I feel there should be some provision for review of this type of a
program to see if it is working. It seems contradictory to impose these requirements for political
air time if the public does not take advantage of the information that it provides. A situation can
easily be created where the public pays little or no attention to the air time being provided to
political candidates. After a certain number of years, if voter participation has not increased or
where there is a backlash against the program, then a review of this requirement would be more
than necessary. If it were ever to reach this point, the requirement would clearly have become a
burden and therefore outweigh the Federal Communications Commission’s duty to promote
public interest.
Services to Disabled Viewers
Equally as important as the broadcaster’s duty to its viewers regarding political discourse,
is its responsibility to its disabled viewers. This duty can be met in two major ways: (1)
improving currently available services, and (2) introducing new services that digital technology
makes available. Disabled viewers as a matter of public policy deserve to be treated equally and
receive the same quality of experience that television affords as non- disabled viewers. Digital
television technology offers a truly unique opportunity to improve the quality of television to all
viewers.
Closed captioning has greatly improved television quality for hearing- impaired viewers.
Like most advances, closed captioning does have its problems. Frequently, closed captioning
text and the captions that broadcasters place at the bottom of the screen interfere with one
another. As is pointed out in paragraph twenty- four (24) of the request for comments, allowing
6
198
viewers to change the size of the text in order to see both the test and the caption would be a
significant improvement. The availability of digital technology should be used to expand closed
captioning, and it should be used to make closed captioning available for all television programs
offered by the broadcaster. Disabled viewers deserve to be able to watch any program they desire
and not be limited to watching only those that have closed captioning available. As is mentioned
in paragraph twenty- six (26) of the request for comments, broadcasters were to gradually
implement closed captioning. With the advent of digital television technology, the time is now
to make significant improvement in closed captioning. Clearly “gradually” needs to be replaced
with a more stringent requirement such as “as soon as possible, but within reason.”
Digital technology also increases the possibilities for new programs to be made available
to disabled viewers. Specifically, video description to accompany oral description and
conversation would greatly improve television quality for those viewers with sight impairments.
I fully agree with the recommendations contained in paragraph twenty- seven (27). With the
enhanced capability of digital technology, it is time for broadcasters to take the necessary steps to
meet the needs of sight impaired viewers. Video description can create an experience for sight
impaired viewers similar to that created by closed captioning that is enjoyed by hearing- impaired
viewers. Clearly, video description technology cannot be developed overnight, but digital
technology greatly increases the possibility that video description can become a reality.
Broadcasters should be required to develop video description technology and provide it to
viewers within a time period such as five years. If they are unable to do so, the Federal
Communications Commission should require the broadcasters to point to a concrete reason why.
7
199
Children’s Proeramminq
Finally, digital television technology should be used to improve the quality of television
available to children. Specifically, I agree with the views raised by People for Better Television.
First, broadcasters should make more educational programming available. For some children,
other than school, television is the only other educational medium available to them. They come
home from school and immediately turn on the television. Broadcasters should target the after-
school hours to show educationally oriented programming. Second, I also agree with People for
Better Television’s proposal to improve the voluntary rating system. For some parents, this is the
only way for them to know what their children are watching. As noted, the increased capability
offered by the digital technology makes this more than realistic. These ratings should be
associated with the show during promotions of the show as well as when the show is actually
being viewed as recommended. Again, both of these programs seem to be well within the FCC’s
duty to promote the public interest. Broadcasters are already providing educational programs and
ratings systems. Requiring them to improve these systems using the available digital television
technology does not appear to impose a significant burden on them.
One final comment on the proposals for children’s programming I would make is in
regard to violence and adult oriented themes that are currently prevalent. I would recommend
that broadcasters seek to create a mechanism by which parents could program their televisions to
block these types of programs. It would seem to be a viable possibility if each show of this type
carried a certain code that when recognized by the television would be refused. Another
suggestion, would be to require that when broadcasters provide a range of programming at one
specific time slot so that parents can choose what programs their children can watch. This
8
200
enables parents to better police what shows are available to their children and provides them with
a mechanism to prevent their children from viewing inappropriate shows.
Digital television offers a unique opportunity to improve the quality of television for all
viewers. For most Americans, television is the most widely used of all entertainment media
available. In meeting its duties to these viewers, broadcasters should be required to use digital
technology to improve emergency warning systems as well as provide important safety
information in potentially dangerous circumstances. Second, broadcasters’ are already required
to participate in political discourse by providing air time for commercials, but this responsibility
should be expanded especially in local communities. Third, broadcasters in providing services to
disabled Americans should be required to offer the best available, state- of- the- art, services.
Digital technology should serve as a catalyst to increase broadcasters’ responsibilities to disabled
viewers. Finally, digital technology offers a unique opportunity to improve the quality of
children’s programming. As a responsible American, I feel that the Federal Communications
Commission should use digital technology as an opportunity to improve the quality of television
for all Americans.
.x - II-^“._ ^ ..-.-. ,- lll.---..---
201
Raymond Kyle Williams
1501 Clinch Avenue
Knoxville, Tennessee 379 16
March 11,200O
Federal Communications Commission
445 12’h Street, Room TW- A306, SW
Washington, DC 20554
Re: Public Interest Oblipations of Television Broadcast Licensees
MM Docket No. 99- 360; FCC 99- 390
Freedom of Speech Implications to Digital Television Regulation
Dear Sir or Madam:
I am writing to you to express my concern over compromises in First Amendment
liberties that will result if FCC 99- 390, Public Interest Obligations of Television Broadcast
Licensees, is used as a vehicle to adopt generic, across- the- board, content- based regulations,
restrictions, and obligations. I am a second year law student at the University of Tennessee with
not only a professional interest in constitutional liberties, but also a personal stake in the future
of my freedom of speech. I have two objections to the approval of new public interest rules for
digital television; one a matter of substantive application, another an issue of timing. While free
speech within the newer forms of mass communication is not absolute, each standard is
evaluated differently according to the inherent characteristics of that particular media medium.
Because digital television is not readily accessible by the vast populate and is unlikely to be
within the immediate future, this medium should be afforded a higher level of free speech
protection subject only to compelling, legitimate government interests. This First Amendment
protection should exceed that afforded to television broadcasts and cable communications
ensuring the growth of the marketplace of ideas. Secondly, adopting regulations during this the
202
preliminary stages of the digital transition, while it still remains unclear what form the new
services will take, are bound to both vague and overbroad. Quite simply, adopting any form of
regulations today would be premature.
FIRST AMENDMENT FREE SPEECH LIBERTIES
When the founders of our country set forth the limitation that “Congress shall make no
law . . . abridging the freedom of speech,” it is unlikely that any of the authors could envision the
protection applying to any form of communicating other than the written or spoken word. It is
easy to concede that the framers could not have predicted the emergence of modem
communications through radio and television broadcasts, telephone transmissions, cable
television, the Internet, and digital television. However, it does not logically follow that these
new forms of mass communication would not be afforded the protections and liberties provided
by the First Amendment. It is more feasible that the Framers would have encouraged the
development of new forms of communication that allow the furtherance of free speech interests
and an open exchange of ideas.
The protections and liberties embodied within the text of the First Amendment rest upon
“a profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open.“ l Supreme Court Justice Oliver Wendell Holmes insisted
that the primary goal of the First Amendment was to guarantee a “marketplace of ideas,” where
truth and honest debate emerged from a multiplicity of voices. 772 The free exchange of ideas
within this market serves as a protector of American democracy, a promoter of public discussion
’ New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).
’ Justice Holmes introduced the marketplace of ideas doctrine in Abrams v. United States, 250 U. S. 616,630 (1919),
where he argued:
[W] hen men have realized that time has upset many fighting, they
may come to believe . that the ultimate good desired is better
reached by free trade of ideas - that the best test of truth is the power
of the thought to get itself accepted in the competition of the market. .
2
203
of competing ideas, and as a multiplier of people’s participation in society and government. This
market is essential to our democracy, growth, and future leadership.
In order to protect and ensure a free, unfettered interchange of ideas3 the Supreme Court
has consistently held that it is the role of the judiciary to prevent the government from interfering
with the growth of the marketplace of ideas’. Because the American political system, culture,
and societal life rests upon the forbiddance of government censorship and imposed silences
based on content of a message, the Supreme Court insists that such a content- based restriction is
presumptively invalid. 5 However, the protection of free speech is not absolute. The Court has
carved out instances where the governmental interests outweigh the right of free speech. In
determining the amount of free speech protection due and the extent of allowable regulation the
Court utilizes different standards based on the speech medium and form of regulation. The Court
has followed this approach in its analysis of newly developed forms of speech.
FREE SPEECH & NEW FORMS OF MEDIA
The Court has long held that as new forms of media and mass communication are
introduced, new First Amendment standards must be applied to each if there are differences in
the characteristics of each new forrn6 In an attempt to modernize First Amendment application
That at any rate is the theory of our Constitution.
’ See Hustler Magazine v. Falwell, 485 U. S. 46, 50 (1988) (stating that “[ a] t the heart of the First Amendment is the
recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest
concern.“); New York Times Co. v. Sullivan, 376 U. S. 254, 269 (1964) (stating that the First Amendment “was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes. .“)
’ & FCC v. League of Women Voters, 468 U. S. 364,381- 82 (1984) (stating that “[ tlhe freedom of speech and of
the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all
matters of public concern without previous restraint or fear of subsequent punishment.“); In re Svracuse Peace
Council v. Television Station WTVH, 2 FCC Red. 5043, 5056 (1987) (memorandum opinion order) (stating “a
cardinal tenet of the First Amendment is that government intervention in the marketplace of ideas . . . is not
acceptable and should not be tolerated.“)
’ See Consolidated Edison Co. v. Public Serv. Comm’n, 447 U. S. 530, 536 (1980) (allowing speech restrictions
based on time, place, or manner, but not on content); Police Deut. v. Moslev, 408 U. S. 92, 95 (1972) (stating that
content- based regulations are presumptively invalid).
6 Stephen C. Jacques, Reno v. ACLU: Insulatine the Internet, the First Amendment, and the Markemlace of Ideas,
American Univ. L. Rev. Vol. 46, Book 6 (1997).
3
204
to new technology, the Court has established different sets of rules. The Court has used a
medium- by- medium approach, when determining the appropriate level of protection that should
be afforded to print, broadcast radio and television, telephone communications, and cable
television, as each has emerged onto the communications landscape. This “medium- specific”
approach to the regulation of mass communication considers each medium separately and applies
a balancing approach of competing government interests to each form in a slightly different
manner. ’ For the past century the Supreme Court has held that the amount of protection offered
to information by the First Amendment depends on the medium by which that information is
conveyed. ’ Thus, the same restriction on the same words would be analyzed differently under
the First Amendment, depending on whether those words were uttered on a street comer, printed
in a newspaper, transmitted through telegraph wire, broadcast through on the radio, spoken into a
telephone, or aired over new digital television channels. ’ Simply put, the Court will review the
underlying technology and inherent characteristics of each new form of communication before
determining whether there exists a government interest that may outweigh the First Amendment
liberty of unrestrained speech over that particular medium.
THE AMERICAN BROADCATING SYSTEM
The system of American broadcasting is founded upon three basic principles: (1) the
electromagnetic spectrum through which broadcast signals travel has been determined by the
government to be public property; (2) broadcasters are granted licenses, at no cost, by the
federal government to use a portion of that public property in a limited geographical area; (3) in
exchange for the free use of this public property, broadcasters are obligated to act in the public
’ See Red Lion Broad. Co. v. FCC, 395 U. S. 367,386 (1969). Addressing the First Amendment protections of
broadcast media, the Supreme Court in Red Lion stated that the “differences in the characteristics of new media
justify differences in the First Amendment standards applied to them.
4
205
interest, convenience, and necessity.” Since this electromagnetic spectrum by which digital
television is broadcast has been found to be public property it must be afforded the fundamental
protections of the First Amendment in order to be consistent with the scope and purpose of the
amendment and the intent of the Framers. However, within this broadcast spectrum there exist
differences that necessitate a variety of determinative standards.
Radio and Television Broadcasts
Early in this century the emergence of radio and television broadcasts brought new
technology and communication advances into the world of mass media and free speech. In the
seminal case of FCC v. Pacitica Foundation,” the Court drew new boundaries by establishing
how far the government may go in restricting free speech over broadcast radio and television.
In Pacifica, the Court diluted the First Amendment protection afforded to radio and
television broadcasts by drawing a distinction between obscene speech and indecent speech. The
Court concluded that the FCC law in question prohibited the broadcast not only of “obscene”
speech, but also of the less harmful “indecent” speech. The Court afforded the medium of radio
and television broadcasting a lower level of First Amendment protection than any other form of
mass communication previously considered. 12
In Pacifica, the Court made clear that the reason for this lower standard of constitutional
protection was tied directly to the nature and characteristics of the broadcast medium that set it
apart from print communications. The Court noted two specific characteristics of the broadcast
media when distinguishing it from print communications: its pervasiveness and its ease of access
9 See Fred H. Cate, The First Amendment and the National Information Infrastructure, 30 Wake Forest L. Rev. 1, 3
(1995).
lo Mark Crispin Miller, Digital Television & the Public Snectrum: What does the Public think Public Interest
Oblieations should be?
” 438 U. S. 726 (1978) (determining primarily whether the FCC has the power to regulate radio broadcast that is
indecent but not obscene).
. .- _. ..-.--. --- .--. -_-- ____ ,-.
206
to children. 13 The Court reasoned that the Government was allowed to regulate broadcasting of
radio and television because these specific forms of communication have a “uniquely pervasive
presence in the lives of all Americans . . . [and are] uniquely accessible to children, even those
too young to read. 14 The Government can regulate and restrict the speech of the broadcasts of
radio and television based on these criteria without running afoul of the First Amendment even if
similar restraints could not be applied to the print medium. 15 It was the unique characteristics of
the medium that was the basis for the Court’s decision of allowable speech regulation.
Cable Television Communications
With the emergence of cable television, the Court again employed a medium- specific
analysis, reiterating its intent to apply different standards of First Amendment protection to new
forms of communication based on their unique characteristics. l6
Although the Supreme Court has not adopted a clear, unequivocal standard in which to
measure the required First Amendment protection afforded to cable broadcasts, federal courts
have consistently held that cable deserves a level of protection greater than that granted to
broadcast communications.‘ 7 The reason behind the greater protection for cable over broadcast
communications is the fimdamental technological differences between the two mediums. The
main difference focused on by the Court was that cable communications do not suffer from
spectrum scarcity as do television broadcasts.” Since there exists only a limited number of
” “[ O] f all forms of communication, it is broadcasting that has received the most limited First Amendment
protection.” Irl, at 748.
I3 u at 748- 49.
I4 u
” See id. at 748 (comparing Red Lion, 395 U. S. 367, which forbids government from forcing newspaper to print
replies of those whom they criticize , with Miami Herald Publ’g Co. v. Tomillo, 418 U. S. 241 (1974), which forces
broadcasters to give free time to victims of their criticism).
I6 See Los Anaeles v. Preferred Communications. Inc., 476 U. S. 488,494- 95 (1986) (indirectly reafftig support
for different standards for different media, but not deciding specifically the appropriate standard for cable
broadcasts, which were viewed as being roughly analogous both to newspapers)
” See Turner Broad. Svst.. Inc. v. FCC, 5 12 U. S. 622 (1994).
” ZII, at 637- 39.
207
broadcast frequencies, unlike the virtually unlimited cable opportunities, the Government and the
public have a greater interest in regulating the use of those resources. Since cable
communications differed on that factor the Court regarded the medium as deserving the
constitutional protection nearing or equaling that of the print media.” Only with broadcast
communications did the Court find that the unique characteristics, namely its pervasiveness and
accessibility to children, justified granting a lower level of protection.
Digital Television
With the transition from analog to digital television (DTV) the debate on regulations and
obligations are once again renewed. Presumptively DTV will offer new opportunities and
endless possibilities in furthering not only entertainment concerns but could serve as an
important cornerstone in public interest duty. Yet, DTV does not exhibit the necessary
characteristics that would justify Government intrusion and speech inhibition. DTV does not
exhibit the unique characteristics justifying a lower level of protection, namely it is not readily
available and accessible to the vast populate. So few people have the expensive television sets
needed for watching digital television. 20 During the transition from analog to digital
transmissions the electronic industry has tried to digitize the American household. However, this
is not economically feasible to all citizens. Sony has lead the industry in its introduction of its
flat display Trinitron tube, a high- resolution flat picture display compatible for both the analog
and digital spectrum.” The costs range from $449.99 for a twenty- inch screen to $2299.00 for a
thirty- six inch screen. 22 Such staggering expense makes digital television distinguishable from
I9 See id. at 639. See also Denver Area Educ. Telecomm. Consortium. Inc. v. FCC, 116 S. Ct. 2374,2385 (1996) (characterizing standard of review in Turner as “heightened scrutiny”).
I0 Reuters, Cable e; roup ooooses DTV rules, November 9, 1998, http:// news. cnet. cominew/ O- 1005- 200-
335127. html? st. ne. fd. mdh
” http: lJwww. sel. sony. comiSELlconsumer/ wega/ products/ index. html
22 d.
__... .I .__... ..- .,- .--1 --.1 ----- -.-
208
television broadcasts and cable communications. This cost characteristic translates into an
availability and accessibility issue.
With digital television, at least currently, not being “uniquely pervasive presence in the
lives of all Americans” 23 or “uniquely accessible to children, even those too young to read”*” it
should be afforded a higher level of speech protection, even more than that allowed of cable
communications. Content- based regulations, restrictions, or obligations imposed on digital
television communications should only be justified by a compelling, legitimate government
interest. Digital television, by its inherent characteristics, is due a heighten level of First
Amendment protection and any regulation thereof should be evaluated under a strict scrutiny
analysis. Under this analysis, there would always be a chance that some expression of speech
might run counter to the greater interest of the counter, or that some compelled speech would
further the collective societal interest, but those instances should be few and far between. The
proper balance should still lie in applying a standard by which only the most compelling
government interests, when applied using the least restrictive means possible, will override the
interest in protecting free speech.
RIPENESS OF DIGITAL TELEVISION REGULATION
Digital transmission affords the opportunity and flexibility to offer high definition
television (HDTV), several standard DTV channels, ancillary services, and any combination of
them all. These new possibilities, however, are still not fully developed and only exist in the
very early preliminary stages of digital technology. If generic, across- the- board regulations are
passed without more concrete information as to the exact details of digital television, it is likely
23 See FCC v. Pacifica Found., 438 U. S. 726 (1978).
24 z
8
209
that they will be dangerously vague and clearly unconstitutional under a strict scrutiny analysis. 25
Such inevitable vagueness will result in an inconsistency among broadcasters that the Court will
view as critical because it will be accompanied by a risk of a chilling effect on free speech. 26
Regulation today of an uncertain digital era will also likely result in overbreadth effects.
The Court has emphasized its commitment to making sure that statutes and regulations
accomplish their purposes without imposing unnecessarily greater restrictions of speech. 27
Premature digital television regulation will exhibit overbreadth in two ways: in its infringement
upon the First Amendment rights of adults, and in its application to such a broad spectrum of
speech.
Digital television speech restrictions and obligations if enacted today will amount to
“bum[ ing] the house to roast the pig.“* ’ Adopting regulations today will accomplish little more
than casting a dark shadow over free speech and inhibiting a large segment of the digital
television community. 29 It is anything but clear as to what form these services will take in the
digital era. With nothing more than mere speculation as to what path digital television will take,
formulating regulations and public interest obligations is a premature fix for problems that have
not yet come to fruition. While early establishment of debate and discussion on this topic can
only help in ‘arriving at workable solutions, the wiser choice is to wait. The actual effects of
digital television must first be felt so that any regulation or forced obligation will bear some
plausible relationship to the actualities of the service itself, rather than its potential.
I5 See Reno v. ACLU, 117 S. Ct. 2329,2346 (1997).
26 Id- at 2344- 45.
27 See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct. 2374,2385 (1996).
x See Sable Communications of Cal.. Inc. v. FCC, 492 U. S. 115, 127 (1989)
9
210
CONCLUSION
For the reasons set forth above, I oppose any action imposing on broadcasters additional
unique regulatory burdens during the preliminary transition stages from analog to digital
communication. I urge you to carefully consider the inherent characteristics of digital television
when evaluating the level of speech protection. Although public interest concerns and duties are
important to our society, I advise caution in pursuing this path that remains obscured by
speculation.
Respectfully Submitted, l
Raymond Kyle Williams
” See Reno, 117 S. Ct. at 2350.
10
211
Justin R. Martin 834 Bluff Dr.
Knoxville, Tennessee 37919
March 16,200O
Honorable Roman Salas
Office of the Secretary
Federal Communications Commission
445 Twelfth Street, S. W.
Suite TW- A325
Washington, D. C. 20554
RE: MM Docket No. 99- 360; FCC 99- 390
Dear Mr. Salas,
Please find enclosed my Comment regarding the above referenced rulemaking. It
is my feeling that the FCC’s implementation of section 336 of the Communications Act
of 1934 should consider current problems associated with analog TV broadcast of
sexually explicit video programming. The implementation procedures and policies
governing Digital Television (DTV) during “transition period” (MM Docket No. 99- 360;
FCC 99- 390) must be evaluated in the context of analog TV and not in a vacuum. Until
the technological advances promised by DTV are uniformly installed in all American
homes, an event which is only projected to occur, DTV broadcasting regulations will
occupy a unique position in the fabric of our society.
It is vitally important that DTV broadcaster recognize and respond to the public’s
“interest, convenience, and necessity” during the “transition period.” The rulemaking
notice that you have issued concerning section 336 noted that “the Act’s central policy’s
provides that DTV broadcasters consider the public interest of the license community to
which they broadcast.” DTV broadcast regulations should confront the concerns raised
by signal bleed of sexually explicit video programming because DTV and analog TV
“simulcasts” will overlap for some time to come.
The transition from analog to digital TV is optimistically set for completion in
2006- 07. However, it is contemplated that some, if not many viewers, will continue to
receive analog broadcasts even in 2007 and beyond. In fact, the Commission itself has
provided that broadcasters will retain analog broadcast rights in areas where less that
85% of the viewers receive digital television.
Digital TV will doubtlessly one day extinguish the controversy and litigation over
signal bleed of sexually explicit programming. Yet in the meanwhile, common sense
dictates that DTV broadcasters should not escape their duty to benefit the public’s
212
interests just because signal bleed is projected to cease causing problems in the future. Specifically, analog and DTV simulcasters should be barred from relying on DTV to
exculpate them from the substantial threat to parental autonomy caused by signal bleed.
Instead, DTV broadcasters should at least be required to act without haste to correct the
problems associated with partially scrambled signals viewed by children and adolescents
by informing parents of the existence and severity of signal bleed. DTV broadcasters
could provide adequate notice in the monthly billing statements received by cable
subscribers, not to mention public access TV channels, the intemet and public files.
The signal bleed issue is hotly contested, with both the Judiciary and Congress
considering cases and statutory reformation respectively. But regardless of their
decisions, the Commission should decrease the potential for harm from signal bleed to
children by requiring DTV and analog TV broadcasters to serve notice of the phenomena
to all cable subscribers” To further its goal of promoting the common good of the public
interest, the Commission should require notice from adult oriented simulcasters to
discontinue to the ongoing threat to a parent’s constitutional right to raise their children
as they see fit. This issue deserves resolution because satellite and digital TV offer only
the hope, but not the promise of resolving all of the problems with signal bleed.
Sincerely,
Justin R. Martin
2
213
BEFORE THE FEDERAL COMMUNICATIONS COMMISSION
COMMENTS OF JUSTIN MARTIN
REGARDING PUBLIC INTEREST OBLIGATIGNS
OF TELEVISION BROADCAST LICENSES
INTRODUCTIONANDBACKGROUND
Section 336 (d) of the Communications Act of 1934 plainly states that a “television
licensee shall establish that all of its program services on the existing or advanced spectrum are
in the public interest.” In the twilight of the analog TV era, a recent flurry of activity amongst
the Judicial and Congressional branches of government established that the issues created by
analog TV broadcasting will continue to be of relevant concern in the 21” century. Through the
instant rulemaking the FCC has the unusual opportunity to create a policy equally binding in
force and effect on both analog and DTV broadcasters. Thus, the FCC’s rulemaking
construction of section 336 should address the residual problems embedded within analog TV
when it issues its DTV regulations.
By addressing the public interest responsibilities of both DTV and analog TV
broadcasters, the FCC could provide a flexible policy accountable for both types of sexually
explicit analog broadcasts through the transition period and beyond. At the same time, the FCC
will institute a policy malleable enough to account for unknown future problems, e. g.,
communities that receive DTV transmissions after 2007 or viewing areas that never receive DTV
broadcasts. Finally, this rulemaking procedure provides for the future of DTV by ensuring that
the transition period accounts for future technological advances, e. g., satellite intercept devices
214
or DTV de- scramblers, which could resurrect the current problems associated with analog TV
broadcasts of sexually explicit programming.
DISCUSSION
Before I illustrate section 561 of the 1996 Communications Decency Act’s role (hereafter
the Telecommunications Act) in the FCC’s implementation of section 336 of the
Communications Act of 1934, it is helpful to first examine section 561 itself. Section 561
currently governs the standards of analog transmission of sexually explicit audiovisual
broadcasts. Section 56 1 (a) of the Telecommunications Act requires all multi- signal video
programming distributors to scramble sexually explicit “adult programming or other
programming that is indecent on any channel of its service primarily dedicated to sexually-
oriented programming.” 47 U. S. C. 3 561 (a) (1996). Section 561( b) of the Act required that
multi- signal or multi- channel operators (MSOs) who fail to comply with section 561( a) shall not
provide “such programming during the hours of the day when . . . a significant number of
children are likely to view it.” 47 U. S. C. A. 6 561( b) (1996). The practice instituted in 9 561( b)
is commonly known as time channeling. ’ The Federal Communications Commission set that
period between 10: 00 p. m. to 6: 00 a. m. 2 Over the past three years, the federal courts decided
that section 56 1 creates an unconstitutional limitation on the free speech rights of MSOs.
Plavbov Entertainment Corn., Inc. v. United States, 918 F. Supp. 813 (D. Del. Mar. 7,
1996)( Plavbov I) and Playboy Entertainment Corn., Inc. v. United States, 30 F. Supp. 2d 702 (D.
Del. Dec. 28, 1998)( Plavbov II). The Supreme Court affirmed Plavbov II without opinion. 3
However, the Court also granted a writ of certiorari to decide the constitutional issues contained
’ See Playboy II at 777.
3 See 520 U. S. 1141 (1996).
2
I_--
215
in Plavbov I and Plavbov II once and for all in the Spring 2000 term. United States v. Plavbov
Entertainment Group, Inc., 119 S. Ct. 2365 (1999). In addition, the 106’h Congress itself is
currently considering amending section 561 of the Act. 4 This relatively lively spurt of energy
emitted by Congress and the Judiciary suggests that the signal bleed issue is alive and breathing
both now and for the forseeable future.
In implementing the purpose of the Federal Communications Commission Act and the
subsequent statutory laws written by Congress governing analog television broadcasts under
Title 47, it is incumbent upon the FCC to consider Congress’ goals for DTV in the context of
residual analog TV problems like signal bleed. Congress’ section 336 instruction to the
Commission requiring that DTV broadcasters to serve the ‘public interest, convenience and
necessity’ cannot be fulfilled without accounting for the problems engendered by analog
transmission of sexually explicit adult video programming because analog broadcasting will
continue to be broadcast until at least until 2007.
The current flurry of activity in Congress regarding communications decency and signal
bleed and suggests that the current regulations fail to enact Congress’ intent. Of course it is
possible that Congress realized it imposed a more restrictive means necessary when it passed
section 561 than the government’s regulatory interest permitted. Indeed, the Judiciary’s interest
in the constitutionality of section 561 may render Congress’ amendment efforts moot. At the
same time, Congress clearly enunciated its viewpoint that broadcasters who transmit partially
unscrambled or wholly unscrambled sexually explicit video programming fail to serve the
public’s interests or needs. Therefore, the FCC should heed section 561 when considering the
4 See 1999 H. R. 3085, 106th CONGRESS, 1st Session (Oct. 14, 1999) (Providing discretionary
spending offsets for fiscal year 2000), and 1999 H. R. 2834, 106th CONGRESS, 1st Session
(Sept. 9, 1999) (Amending the Communications Act of 1934 to clarify State and local authority
3
216
manner and method by which section 336 shall be given effect. Nothing associated with the
impending controversy over section 561 suggests that the FCC’s legislative mandate under
section 336 is in jeopardy, or, even more to the point, rendered moot. The enactment of section
561 makes it clear that Congress and its constituents fear the consequences of children viewing
unregulated transmission of sexually explicit adult video programming. Therefore, the
Commission must implement section 336’s intent, while keeping the implications of section 561
in mind when implementing section 336 in the theater of DTV. In fact, the inherent authority of
section 336 clarifies that the Commission must regulate all broadcasting in the name of the
public interest, which thereby requires that the conduct of both DTV and analog broadcasters of
sexually explicit programming submit to the same standard. The key, therefore, is doing so in
such a manner that the Commission’s actions withstand even the strictest scrutiny by the
judiciary. Luckily, this goal is possible.
ANALOGSOLUTIONS
Even the judicial decisions interpreting section 561 admitted that would bepossible for
the FCC to enforce section 336 in such a way that section 56 1 ‘s overall spirit is incorporated in a
narrowly tailored and least restrictive means. The Playboy II court examined three ways by
which adult oriented transmissions can be “completely scrambled.“ ’ Of the three methods,
lockboxes and negative traps proved to be overly burdensome because of the associated ecnomic
costs. However, the Playboy II court indicated that the third alternative, positive traps, could be
both effective and economical. But Playboy II dismissed the latter alternative as overly
to regulate the placement, construction, and modification of broadcast transmission and
telecommunications facilities).
5 Playboy II at 780
4
217
burdensome to adult broadcasters because it constrained “the impulse nature of purchasing adult
programming” such that lost revenues could not be recouped.
But here’s how we could prevent children and immature minors from receiving signal
bleed during the transition from analog to digital TV. The proper analysis should ask two
questions. First, what are the needs and interests of Playboy’s community of license, i. e., what
obligation, if any, does Playboy have to its subscribers considering the nature of its programming
content. In this case, Playboy’s obligation is obviously very low because naked frolicking and
orgasms are exactly the reason that viewers pay to watch the Playboy channel. If their children
see explicit sexual acts performed, it is because those viewers have assumed the risk that a
subscription to Playboy might reveal the vagaries of sexual intercourse to their children before
the public schools, Catholic nuns they themselves intended.
The second question asks, therefore, what needs and interests comprise the public interest
of the community receiving partially scrambled television feeds from Playboy? The community
of license in this sense is different from the community of paying Playboy subscribers because it
includes the vast public community of cable subscribers at large. And it is this majority of cable
viewers that are affected by signal bleed. In the latter instance, viewers unaware of signal bleed
should be educated about it, and, moreover, all cable subscribers should have the option of
blocking signal bleeds if it is economically feasible. Signal bleeding should not act as free
advertising or act a teaser for the Playboy channel. If regulation of signal bleed is ultimately
adjudicated by the Supreme Court to be a impermissible content restriction under the First
Amendment, however, Playboy should still be required to provide notice to all of its affected
cable subscribers regarding nature and content of partial scrambling. This remedy should be
born by both DTV and analog broadcasters because the households may most likely to subscribe
218
to DTV are also the most likely to own multiple televisions, including analog televisions that will
continue to be affected by signal bleed.
The notice expenses should be born both by the cable operator and broadcasters like
Playboy, 6 since they each profit from the considerable publicity gained from a partially obscured
signals featuring orgiastic moaning. As the recent movie American Pie demonstrated, the
graphic nature of the acts depicted is often substantial enough to provide “viewers” with
considerable “stimulation” even though the signal is technically “scrambled.”
Playboy and other adult oriented stations aren’t in the same club as other “premium”
channels like HBO, Showtime and Cinemax. Children and adolescents, whose attentions spans
are ever on the downturn, simply aren’t willing to listen to a movie smeared by squiggly lines
and random half pictures in the hope of a partially exposed breast or a few muttered moans and
groans of the course of a two hour movie with real acting (if the acting between sex xcenes were
better, then they might). However, when partial audio and video feeds provide constant sexual
feedback to the viewer, the pull of signal bleed may be strong enough to captivate a young
audience. Whether we want Playboy to educate children about sex, or whether we would prefer
that our public schools do so is an important matter because parents are deprived of due process
in the former setting. In the case of signal bleed, parents of children and teenagers, who view
Playboy’s partially bled” signal, are bereft of the notice and opportunity to be heard regarding
their First Amendment rights to oversee the development of their children into adults. See
Wisconsin v. Yoder, 406 U. S. 205 (1972). In contrast, parent teacher’s association board
meetings, school referendums and formal requirements imposed on County Boards of Education
6 Other adult oriented channels include AdulTVision (owned by the Playboy Entertainment
Group), Adam & Eve, and Spice, (the latter two are both owned by Graff Pay- Per- View).
6
_-.-.-_. .-._ -_ __ .,“.~--.. l”_.- ._-,-.-.-.- “I___.-~- --
219
provide substantial procedural safeguards concerning the substantive issues concerning sexual
education that the Playboy channel lacks.
The Playboy channel stands as an end run around Yoder’s constitutionally approved
process, which impliedly violates the restriction placed on each and every broadcaster to
consider the “public’s interest” and the “fundamental needs and interests of its community of
license.” Recipients of signal bleed are the unwilling prisoners of the broadcaster and should at
least receive notice, if not the choice to black out such signals where economically feasible.
Thus, notices informing subscribers of signal bleed and its effects in sexually explicit
programming should accompany each billing statement submitted by one’s cable company. In
addition, Playboy should register with websites that distribute public interest information to
interested parents and cable subscribers. These notices should also comprise part of the FCC’s
public file for Playboy’s commercial TV broadcast account and all viewers should have access to
this information. Finally, notice of sexually explicit signal bleed should be prominently
displayed and easily located on channels that display public information. If Playboy ever begins
to offer intemet access through its DTV channel, the notices should be accordingly modified.
The costs and burdens associated with these public interest obligations under section 336 may
even encourage Playboy to fully scramble its channels, which it has argued would constitute and
excessive cost but which in reality might just be smokescreen.
A. CONSTITUTIONALCONCERNS
Noticing all analog and DTV viewers of the possibility of signal bleed is not an
infringement of First Amendment content in programming. Requiring Playboy and its brethren
to serve the public interest by informing the cable subscription community does not ask it to
change or alter its content, thereby causing a putative First Amendment free speech intrusion.
7
,, __-__._._ _-_._ ----.--.--- I”- ____” -..-
220
Instead, Playboy is merely asked to inform cable subscribers and satellite viewers of the nature
of its programming and inform its users that any concerns over signal bleed can be remedied by
blacking out the signal in its entirety. Even if requiring notice and information from Playboy to
its viewers is found to be an intrusion, this remedy is narrowly tailored and is the least restrictive
means possible of enforcing Congressional mandate that DTV broadcasters serve the needs and
interest of the public. Any substantive deprivation of rights are therefore de minimus.
B. ANALOG TV REMAINSIMPORTANTINSPITEOFSATELLITEBROADCASTINGAND DTV
The development and implementation of new technologies fails to sufficiently ensure that
the phenomenon of signal bleed will ever become totally non- existent. Direct broadcast satellite
technology7 and DTV promises to end signal bleed only to the extent that all the televisions
within a single household can accommodate digital satellite technology. Section 561 has not
been specifically amended to encompass DTV and or satellites, but regulation of these forms of
broadcasting could be equally well managed under the auspices of the FCC’s regulation of
Section 361 of the 1934 Communications Act. Even if a household receives only DTV or
satellite TV broadcasts, such subscribers may be indirectly impacted by their children’s friends
who visit the same sexually explicit programming at their friends’ home( s).
Digital cable service, is also an advanced technology eliminates signal bleed. The
Plavbov II court noted that approximately 2 million households already receive such service, and
that MSOs will most likely make the premium channels the first channels they switch over to
digital cable. The upgrade from traditional coaxial cable to hybrid fiber- optic coaxial cable is
estimated to cost MSOs collectively close to $25 billion, which is peanuts compared to the
’ Direct broadcast satellite systems include such services as DirecTV, Primestar, and EchoStar Communications. However, DirecTV, DISH Network, and Primestar all have Playboy
Television available 24 hours per day, in addition to pay- per- view services and 24 hour
availability.
221
maximum estimated cost of complying with section 561 (one billion max). Forcing DTV and
analog TV MSOs to comply with the spirit of section 561 would not result in throwing money
away, even during the transition period. It will take at least six to seven years to complete the
transition, during which time millions of children will be bombarded by the unnecessary and
unwanted invasion of adult themed signal bleed. Any delays in construction of the DTV web
will extend the expected completion date well beyond the contemplated date of 2006- 07. In
addition, signal bleed will continue to plague areas that are slow and/ or resistant to the DTV
changeover. Finally, the Commission has already decided that analog TV will continue to be
broadcast wherever DTV is received by fewer than 85% of the households. There is a dramatic
contrast between requiring MSOs to furnish notice to parents about the nature and effect of
sexually explicit signal bleed and permitting children or immature minors to watch sexually
explicit adult programming without the knowledge or approval of parents whose First
Amendment rights have been deprived.
CONCLUSION
Ultimately, section 561 may be found unconstitutional. Yet the courts in Playboy I and Plavbov
11 found that complete scrambling could be achieved for a mere fraction of the costs of
implementing DTV or satellite TV. Thus, at the very least, analog TV and DTV MSOs should
notice parents about the nature and occurrence of signal bleed. The costs of noticing parents as
to the nature and effect of signal bleed are cheap and the intrusion is de minimus. The mandate
of section 336 requires that the FCC respond by subjecting both DTV and analog TV
broadcasters to the same standard of disclosure in order to meet the public’s interest as opposed
to profits and fiscal bottom lines. We should not limit notice requirements affecting subscribers
subjected to signal bleed to the Playboy channel alone, but should apply it to all “premium”
9
-- _. _._._ - __._.. -“ l_.” ._-...--- -_ I-- . .
222
channels that air sexually explicit programs during daytime and early evening hours. Since at
least four channels program virtually 100% sexually explicit adult programming, 8 it is the signal
bleed from channels like these that section 561 was designed to block but which section 361 can
remedy.
* See note 6 infra and accompanying text.
10
223
Jama McMurray
March 17,200O
Administrative Law
BEFORE THE FEDERAL
COMMUNICATIONS COMMISSION
COMMENTS ON THE PUBLIC
INTEREST OBLIGATIONS OF
TELEVISION BROADCASTING LICENSEES
l( lgtroductiou
On the 26* of January 2000, the Federal Communications Commission published its
notice of proposed rulemaking for comments on how broadcasters can best serve the public
interest as the switch to digital transmittion technology is made. Notice of Proposed Rulemaking,
65 Fed. Reg. 4211 (Jan. 26,200O). The Commission’s document is based on recommendations
and proposals from such groups/ persons as the Presidents Advisory Committee on the Public
Interest Obligations of Digital Television Broadcasters, People for Better TV, and Vice President
Al Gore. The Commission is now requesting ideas from the general public and broadcasters on
the best way to maintain a public interest standard during the transition to digital television.
My name is Jama McMurray. I am a third year law student at the University of Tennessee
College of Law. These comments are based on a requirement of an administrative law class
taught by Professor Glenn Reynolds. I will attempt to comment on the issue of Enhancing
Access to the Media in areas such as disability and diversity.
224
Television is by far the means by which most Americans obtain news, information and
entertainment. Even those who do not yet own a computer usually own at least one television.
Broadcasters have a duty of controlling what is aired on these stations and the Federal
Communications Commission has been given the authority to enforce the public interest
requirement. The only way the Federal Communications Commission can issue, renew, or
approve a transfer of a license is if broadcasters comply with an affirmative public interest
program. With the arrival of digital television, public interest obligations have been revisited.
Although the Commission may adopt new public interest rules, some argue that these rules
should change to fit the opportunities provided by digital channels, while others argue that there
is no need to change the rules.
In 1998, the President’s Advisory Committee on the Public Interest Obligation of Digital
Television Broadcasters provided ten separate recommendations on public interest obligations
that digital television broadasters should assume. In 1999, People for Better TV requested that
the Commission have a rulemaking proceeding to determine what the obligations are. Still others
are dealing with issues that are not directly related but have a connetion with digital television.
The Commission seeks comments on how broadcasters can make a smooth transition to
digital television while still serving the public interest. Areas of interest include challenges
unique to the digital era, how to respond to the communities, and enhancing access to the media.
With the introduction of digital television the original rules should be amended to change so that
the public can be given the newest and best technology out there. Also the fields related to
digital television should open to those who before have been limited in their access to the
ecomonic opprotunities to the media.
225
Discussion_
While not a direct result of the transition to digital television, a long standing goal of the
Federal Communication Commission has always been to broaden access to the media to include
everyone reqardless of race, gender, ethnicity or disability.
Disability
Many years ago if a person were to have a broken leg or be confined to a bedfast for a
period of time, he would only be able to watch whatever channel was on or no television unless
there were someone there to change the channel or turn it on for him. Then came the remote
control which enabled him to have access to the power and all the channels fi- om bed or a chair
with the push of a button. Assuming, that is, that he had working batteries.
How much more distressing it must be for those with hearing or vision imparements.
Every effort should be made to provide these people with the maximum access available for them
to enjoy television programing as any other citizen may. A few years ago, businesses, schools,
state parks, etc. were required to provide access to our handicapped persons. There are many
severly handicapped and older citizens that may not be able to take advantage of these
improvements because they are confined to their homes. Why should thearea providing the most
information to Americans be exempt from more accessibility?
Closed captioning has brought some access to the hearing impared over the past few
years. However, not every type of programming is included. Several areas have been exempt
3
_.. -.-. .._. “~ .I- l_--.__“- ..__ _. . .-.. - ..- .- I .__.-.
226
from the requirements. Among those exemptions are: advertisements of less than five minutes,
non English programming, promotional and public service announcements, late night
programming, and political programming. ’ Not every average citizen is interested in the same
type of programming or watches television at the same time. Why should the disabled receive
only a particular base of programming. Do we assume that all handicapped persons go to bed at
9: 00 PM? Are all handicapped persons English speaking? The Commission has called for the
gradual expansion of PSA’s and political programming. This is a step forward but it appears that
there should be an expansion into more of a variety of different types of programs and timing for
the shows that are closed captioned. While funds and resources may not be available to
immediately provide handicap access to every program, there should at least be an effort made to
provide at least some access to all types.
The 1996 Act requires “new” programming to be closed captioned by 2006 in phases.
Older “library”* programs have a ten year set limit. The Federal Communications Commission
is to measure compliance with the rules quarterly.
However, there may be special exemptions given in certain instances. New networks
have up to four years aRer launching to provide closed captioning. Those broadcasters with
gross revenues of less than three million qualigy for exemptions and the larger entities do not
have to exceed two percent of revenues from the previous year.
’ 498 PLUPat 73, “Developments in Communications Law”, Richard E. Wiley,
November 1997.
2 498 PLI/ Pat 73. New programming is any that was published or exhibited after January
1, 1998. Library programming is any published or exhibited before that date.
4
227
With the coming of digital television, video description will be more easily available and
should be required to have a phase in and compliane schedule similar to that of closed captioning.
The Commission shoudl impose different requirements on digital television broadcasters in
accord with the advances in technology. Perhaps the phase- in scheduling should be revised to a
shortened period of time if possible. As People for Better TV suggest, every effort should be
made to probide “expansion of services to persons with disabilities”. Perhaps where there are
undue financial burders on broadcasters a supplimental fund may be available and/ or trade- offs
made in other areas.
Diversity
Another goal of broadcasting is that of diversity of viewpoint, ownership, and
employment. It is unlawful for an employer to refuse to hire, discharge, or discriminate against
any individual because of race, color, religion, sex, or national origin. ’
People for better TV has suggested that broadcasters for digital television “exploit digital
technology to reflect the diversity of their communities”. The changes brought by digital
television also bring more employment opportunities and opportunities for expanded diversity in
programming. So long as the minorities and women are adequately trained to perform the jobs,
the creative business arrangements, inclucing channel- leasing and partnerships, are a good start
to providing a more diverse environment within broadcasting. Congress has found that dispite
a dramatically growing presence in the workplace, women and minorities remain
underrepresented in management and decision making positions in business. The glass ceiling
3 42 U. S. C. §2000e- 2. Unlawful employment practices.
228
commission was established in order to study policies to improve such access. 4 The Agency
Committee has suggested that broadcasters encourage effective participation by minorities and
women in all areas and in particular, gaining these groups access to more of the decision- making
positions in the industry.
The representation of minority groups in higher positions should have a positive effect on
programming also. Just as all handicappped persons should not be limited in the programming
they have access to, nor should these minority groups. Digital television will provide the
availability of greater programming capability. Therefore, there should be no reason that there
cannot be a healthy blend of programming for all viewers.
In this country we are lucky that we have the right to have and express different views.
Even though everyone’s view may not be represented by a decision- making employee, programs
and research groups should be set up to study and see that the broadest diversity possible be
available in programming. Also the lines of communication should be kept open with the public
and a system should be in place to make sure the public opinion and comments are recognized.
Although different in many aspects, the issues of diversity and disacility are similar in one
way. Provisions should be made to provide both complete access to media. The disabled should
have means available where they can enjoy programming while minority groups should have
access to employment opportunities and dicision making over the programming. The
advancement of digital television should open the door for many new opportunities for all.
4 Glass Ceiling Act of 1991, $202( a)( 1)
6
229
With the changing of technology to include advances such as digital television, an
evaluation of the rules on public interest programming and all other areas of access to the media
should be refined to reflect the advancements in society. Everything possible should be done to
provide our handicapped and economically disadvantaged citizens the West access possible to
the media and new technologies.
7
--. ~~ .-“^-.._.._ _-. --- -- I - _- -----. 1”. -.
230
~~~~~~~~
BEFORE THE FEDERAL COMMUNICATIONS
COMMISSION
COMMENTS OF JILL R. SCHMIDTKE
REGARDING MM DOCKET NO. 99- 360;
FCC 99- 390
PUBLIC INTEREST OBLIGATIONS OF
TELEVISION BROADCAST LICENSEES
INTRODUCTION AND BACKGROUND
On January 26,2000, the Federal Communications Commission published a
notice of proposed rulemaking soliciting comment on how broadcasters can best serve the
public interest as they transition to digital transmission technology. The Commission
acknowledged that television is a “primary source ” of news and information that have a
great impact on Americans and in particular children. As a third year law student and
mother of three small children I am especially concerned with the role the media plays in
serving the public. In particular, I would like to respond to the Commission’s request for
comment on the role of digital television (DTV) in regards to children’s programming
and the obligations set forth in the Children’s Television Act of 1990.
Currently the Federal Communications Commission takes a limited role in
ensuring compliance with the Children’s Television Act of 1990 by non- digital licensees.
Although the Commission establishes certain minimum standards that must be met it
does not extend its authority to micro- management of individual licensees. Under the
Act a licensee meets its obligation to children’s programing when it has aired at least
three hours per week of “Core Programming” during the hours of 7: 00 a. m. to 10: 00 p. m.,
limits the amount of commercials aimed at children, limits “adult content” programming
- -__-. ,I . -_-.-..--.-
l.- .--.-..-.-- . ~ ___ ,.._” .,...--- - ~.”
231
to appropriate time slots, and publishes the educational and informational objectives in
writing in the licensee’s Children’s Television Programming Report. ’ While 1 do not
advocate an increase in the responsibility of individual licensees, 1 do urge the Committee
and Congress to take the necessary measures to ensure that the current requirements for
Children’s programming continue to be met in the digital era.
DISCUSSION
It has long been established that a primary goal of the Communications Act of
1934 is to ensure that a public interest is served by broadcast licensees. A component of
this public service requirement is that broadcasters serve the educational and
informational needs of children with programming specifically designed for that
purpose.* This view was reinforced when Congress passed the Children’s Television Act
of 1990 to ensure broadcasters complied with this component of the public interest
standard.
In the digital age this requirement can be a complex and difficult undertaking for
individual licensees that broadcast on multiple band frequencies or “multi- cast.” As a
result it is unclear whether or not the F. C. C. should demand that children’s programming
be provided on each digital band that an individual licensee owns or whether
programming on one band is sufficient to meet the requirements of the Children’s
‘47 C. F. R. 5 73.671
21 6 Cardozo Arts & Ent. L. J. 341, *342
232
Television Act of 1990 (CTA). I believe that individual licensees can meet the
obligations set forth in the CTA by broadcasting children’s programming on one of their
band width frequencies instead of being required to broadcast the requisite three hours per
week on all of their band width frequencies.
With the advent of cable we have seen the success of tailored programming
stations such as ESPN, MTV, Lifetime, and Nickelodeon. These channels target a
specific audience with a stylized viewing format. When you turn on ESPN you know
you are getting sports and nothing else. You don’t want or expect anything else. But in
the same turn, if you are a parent looking for quality television for your children you
know that you can turn to Nickelodeon, the Disney channel, or PBS for the kind of
educational programming suitable for children. Channels like Nickelodeon and Disney
has been a commercial success in the American television market. It would probably
interest many “Nickelodeon” moms that Nickelodeon is owned and operated by MTV. It
is possible for licensees who participate in adult content channels to also meet their
public interest obligation in the form of channels dedicated to children centered viewing.
I, as a mother, would be uncomfortable with my three- year- old being encouraged to
watch MTV through “child friendly” programming.
Although I believe that the programming requirement can be met by an individual
licensee broadcasting children’s programming on only one of its band widths, I would
enforce the limit on children’s advertising and the limit on adult content programming on
all bandwidths held by the individual licensee. The CTA recognized the
impressionability of children when it set out the guidelines for children’s programming.
It specifically places restrictions on advertising and content because children cannot
. “.- .._ ._.-.._ 1 ,-., ._.- -_.___ - .. C,,.- I--., _____-
233
always distinguish the difference between what is real and what is make- believe. It
would be easy to put the burden on parents to ensure what types of programming to
which their children are exposed. However, this assumes that each channel has a specific
format and allows for no mixed- format programming. That is not reality. The reality is
that in an effort to reach multiple- target audiences many stations have a mixed format.
Fox is a perfect example of a station that targets children in the morning and adults in the
evening. As a result children looking for children’s programming may be exposed to
adult programming. They don’t know that adult programs come on channel 11 but they
do know that Batman does.
The second issue I would like to address is the possibility of allowing licensees to
provide a “usage” fee or financial donation to facilitate public service goals. I am
uncomfortable with this idea for the simple reason that it sounds like a bribe. Instead of
holding licensees responsible for meeting their public interest obligation on the airwaves
they can simply buy their way out of any type of programming regulation. While this
may enhance the media viewing opportunities for our children in school it my leave a
media viewing void in our homes. I am concerned that the programming at home could
slip to a marketing extravaganza for producers of children’s products. If the only goal
was to syphon off part of the advertising revenues to meet the public interest goal then
licensees would be encouraged to accept more advertising in the form of commercials and
programs aimed directly at the children’s market. This type of public interest fulfillment
would allow broadcasters to bypass any obligation for “educational and informative”
programming in America’s households.
This is not to say the public would not demand educational television for their
234
children. However in the two- parent working home who has time to demand it. As
parents we rely on PBS, Disney and Nickelodeon to provide the educational
programming we want for our children. But without it we easily go the way of the
Cartoon Network which has little, if any, educational value for our children. Is if fair to
put the burden on broadcasters ? Maybe not but it may be fair to ensure a partnership with
parents that considers the needs of our children over the greed of the advertisers.
The third issue I would like to address is “self- regulation” by the media. It has
been suggested that if you allow the media to self- regulate that quality children’s
programming will continue out of market demand. I must disagree. The Children’s
Television Act of 1990 is a direct result of the media’s attempt to self- regulate. In the
late 70’s and early 80’s the government took a “hands- off’ approach to television in an
attempt to deregulate the industry. After this deregulation “the quality of children’s
programming dropped to an all time low and children’s television quickly became one
giant commercial.“ 3 In response Congress passed the CTA with “two goals in mind: (1)
reinstating the commercial restrictions of the 1974 Policy; and (2) tying broadcasters’
license renewal to the quality of its children’s programs.“ 4 In a mere matter of a few
years self- regulation failed children’s programming. Broadcasters blamed market
pressures and the fight for the almighty advertising dollar instead of lack of self-
regulation as the cause of the decline in children’s programming.
351 SMU L. Rev. 413, *416
451 SMU L. Rev. 413, *416
235
There are arguments for self- regulation. Proponents of self- regulation argue that
it is more efficient, more flexible, has more incentives for compliance and is less costly. 5
However, I can’t help but wonder if you are leaving the wolf to guard the hen house here.
The key factor to self- regulation working is industry expertise and motivation. 6 In this
situation greed may override the motivation to self- regulate. Advertising dollars provide
a strong incentive to broadcasters and we have to look at what point broadcasters would
be willing to forego self- regulation in a bid to earn those precious advertising dollars. In
a domino effect other broadcasters competing for those same dollars may be willing to
abandon self- regulation. And therein lies the true danger of self- regulation. It relies on
the recipient of the benefit to police themselves.
Secondarily, the cost of self- regulation, although less expensive than government
regulation, may be prohibitive to broadcasters. Particularly those broadcasters with a
smaller market share of view. As a result small broadcasters may not adequately self-
regulate. This could lead to several problems: (1) lack of regulation among small
broadcasters; (2) attempts by larger broadcasters to “squeeze” out smaller broadcasters by
reporting noncompliance to the F. C. C.; or (3) government intervention in self- regulation
of noncomplying broadcasters.
Because of these concerns, I urge the Committee to recommend against self-
regulation. As we saw in the 1970’s and early 1980’s self- regulation by the media failed
this Nation’s children. Children provide a smaller target audience and are the first
%I Fed. Comm. L. J. 711, *718
%I Fed. Comm. L. J. 711, *718
236
victims of media self- regulation.
Conclusion
For the reasons set out above, I urge the Committee to recommend continued
enforcement of the Children’s Television Act of 1990 in regards to Digital Television to
ensure continued quality educational programming for our children. I believe this can be
accomplished through dedicated children’s channels but not through usage fees or
financial “donations.” I strongly recommend that the F. C. C. maintain regulation over the
industry by predicating licensing on compliance with the Children’s Television Act of
1990. Although the media presents a large and powerful lobbying group, they should not
be rewarded for using their power to gain a “bigger” market share at the expense of
children.
Jill R. Schmidtke
84 18 Foxworth Trail
Powell, Tennessee 37849
(865) 938- 0243
237
To:
From:
cc:
Date:
Re:
William Kennard, Chairman - FCC
Alex Waddey
Professor Glenn H. Reynolds
03/ l 7/ 00
Comments on Proposed Minimum Public Interest Obligations
Dear Chairman Kennard,
In response to the FCC’s request for comment, 65 FR 4211, (December 20, 1999)
I want to communicate my view as a law student and as an avid viewer of television. I
realize that numerous comments support furthering regulation. At this time, I would like
to present a view from the people which opposes mandatory public interest obligations.
Introduction and Backmound
On December 20, 1999, the Federal Communications Commission issued a notice
of inquiry regarding the public interest obligations of broadcasters in the transition from
analog to digital television. Broadcasters have a major impact on both children and
society as a whole. They are a prime source of news and information and contain the
power to shape the way we view the world. Because of their impact, broadcasters have a
certain duty to serve the public. However, this role is not something new to the
broadcasters. The 1934 Communications Act requires broadcasters to serve the “public
interest, convenience and necessity.” While the language seems extremely broad, the
requirement has evolved into obligations regarding children’s programming, politics and
1
. .” .~. ” _..__.. -..-. _.. .l. l--._ I__. _-_-^-“_ -, ..,.- ---
238
community issues. Specifically, broadcasters must air three hours of children’s
programming and provide political candidates lower advertising rates.
As technology progresses into the future, the switch from analog to digital
television has enhanced the concern of public interest groups. The concern focuses on
the public interest requirement of the broadcasters as technology progresses into this age.
The concern arises because digital television offers numerous systems over which to
broadcast. With the increased systems, proponents of public interest feel that
broadcasters are receiving “something for nothing.”
Public Interest Oblipations are Unnecessary
Since 1934, the FCC has had a duty to protect the interests of the people. The
broadcasters have upheld their end of the bargain and have gone above and beyond what
has been expected. However, with the onset of digital television, a coalition, the People
for Better TV, has formed to try to mandate certain minimum public interest obligations.
The coalition claims that broadcasters have not adequately supplied public interest
subject matter.
Proponents claim that broadcasters are receiving a $70 million benefit for free.
However, the argument is misguided. The broadcasters are not receiving anything for
free. In fact, they are being forced into purchasing $30 to $40 million of equipment in
order to make the transition. ’
’ Catalina Camia, Debate on Rules for Digital Television Continues, The Dallas Morning News, May 27,
1999.
2
239
Furthermore, research gathered by the NM leads one to a realize that
broadcasters are not receiving anything for free. Broadcasters are considered one of the
largest providers of public service in the nation. Over the past year broadcasters have
provided over $6.8 billion in total public interest stories. The amount is divided among
$4.6 billion in public service announcements and $2. I billion raised for charities and
other various causes. 2
Currently, an evaluation of the hard numbers of community service
underestimates the value broadcasters contribute to the community. The numbers are
skewed because they omit various other contributions that broadcasters make to the
community. Some contributions include, but are not limited to the following: charity
events, blood drives and serving on boards and commissions3
These contributions are overlooked in calculations but play a major role in
supporting, educating and assisting with the community. Broadcasters are role models as
well as “community cheerleaders.” While they may not be educating the public directly,
they are playing a major role in assisting with the further education of the public. Just
think about how many times you have seen your local broadcaster supporting “The Race
for the Cure” or hosting a “Muscular Dystrophy Telethon.” While merely supporting
such causes may not directly educate the people, their support helps to inform the people
of certain problems that exist and provides them with a resource and understanding of
how they can help out in the community. Their role of getting people in the community
to join together in support of those in need, I argue, is much more important than having
’ www. nab. orghewsroom/ issues/ commserv/ defaukasp
3 Id.
3
240
them remain isolated in the station. The development of local stories which will be aired
make the broadcaster a more passive, distant part of the community, whereas, now they
are an active participant. With that said, I want to address more specific areas under
regulatory consideration.
Providing Political Candidates with Excess Advertising
The Gore Commission urges that political candidates receive free air time for
advertising before elections. The Commission proposes an argument without considering
the desire for such material. The People for Better TV argue that there is a “huge gap
between what people need and what broadcasters are willing to provide.“ 4 The argument
is misplaced. In the 1998 elections, exit polls revealed that eight out of ten voters said
there was either an excess of coverage or the amount of coverage was ideal5 Also,
broadcasters donated over $148 million in free air time for candidates, public forums and
debates. 6 Broadcasters even offered $15 million in free air time to candidates, but as
Dennis Wharton, a spokesman for the National Association of Broadcaster, says, “[ tlhe
dirty little secret about free time is that when broadcasters offer it, it is turned down7
Politicians turn it down because they know that nationally televised debates are not
necessarily the best way for them to spend their time. ’ Debates cost time and energy and
Kathy Chen, Regulators Weigh How fo Expand Sfanahr&, for Digifal Broadcasfing WALL ST. J., Dec.
15, 1999, at B4.
’ www. nab. org/ newsroo~ issues/ commseN/ ay~~ ee~~ r~ times. asp
’ Brooks Boliek, FCC Begins Public Service Work, 360 Hollywood Reporter 47, 4 (1999)
’ /UT
’ www. usatoday. comfnews/ e9g/ el067. htm.
4
241
are not the most impressive to the people. The public is often more impressed by
personal interaction. 9
Further, the lack of desire for more political programming is apparent in the
ratings. Political debates receive some of the worst ratings among programs aired.
Ratings for this year’s presidential debates show that all the debates combined have
received fewer viewers than some of the lowest rated weekly programs. The WWF
“Smackdown,” the 9 1 st ranked show of one week, received 7.2 million viewers, and
“Buffy the Vampire Slayer,” the 93 ranked show, attracted 3.9 million viewers. lo
Wharton, adds, “[ w] e don’t hear a lot of clamoring from the public for more time for
politicians.“”
No matter the popularity of political debates, viewers use specialized news
channels to find out about such matters. The public primarily turns to stations such as
CNN, MSNBC and C- SPAN because this subject matter is the sole mission of these
channels. They have the resources available to cover the issues in the most effective,
insightful and entertaining manner, and they do not face regulations. If broadcasters
were subject to regulation, they would not only be “hamstrung by new, narrow,
qualitative, ‘one- size- fits- all’ public interest obligations” 12 but also by their limited
resources.
People may argue that extra information would help the public form a more
educated opinion. In response to such an argument, I say be realistic. When elections
‘I Id. lo Id.
” Kathy Chen, Regzdafors Weigh How to Expand Standardsfor Digital Broadcasting, WALL ST. J., Dec.
15, 1999, at B4.
‘* I brying L’ersions of Public Interest Heard By Gore Commission, Public Broad. Report, (1997).
5
242
are over, people rejoice - no more arguing or bashing of opponents; no more boring
Gore/ Bradley debates. I would tend to agree that such programs may further educate the
public, but they only do so if people actually watch the programs. No matter how much
political content you air, “There will be a slice of the American public who will wake up
and say, ‘Huh? What happened? My state hasn’t even voted yet! ’ “”
Increased Children’s Educational Programming; - More Harm than Help
The Commission also seeks comment on whether broadcasters should be required
to increase the amount of children’s educational television. Presently, the
Telecommunications Act of 1996 requires broadcasters to ensure that 4% of their
programming content consists of educational programming.‘” Broadcasters have
strained to met such requirements throughout the analog phase. Such a requirement in
the digital phase for each stream wouId extremely overburden the broadcaster.” Andrew
Paul, a lobbyist for the Satellite Broadcasting and Communications Association, is
concerned as to where broadcasters can find the necessary content that such obligations
would require. With a nationwide base of customers, broadcasters cannot use local
environmental issues therefore eliminating “a large block of what is available now.“‘ 16 A
lack mandatory regulation does not mean that broadcasters will ignore public interest
TV. As the numbers have shown, broadcasters have voluntarily upheld their end of the
bargain and will continue to do so with digital TV. Broadcasters have even considered
” www. usatoday. comlnews/ e98/ e1067. htm
‘I Bill McConnell, FIT Sefs lhe Price for Digital, Broad. & Cable, November 23, 1998.
I5 Bill McConnell, DeciJiq 011 Digital Public Interest, Broad. & Cable, October 12, 1998.
” Id.
6
243
making one stream an entire language teaching channel. Public advocate Gigi Sohn
agrees that “[ she] can live with the 4% number as long as the FCC is willing to revisit the
issue in the future.‘ 917 Sohn’s request is justifiable, but I believe, in the future, public
advocates will see that broadcasters have lived up to their responsibility.
Additional reasons an increase in children’s television is not the answer are the
harm caused to the parent/ child relationship as well as the harm to the child individually.
Children are in school from eight o’clock in the morning to three in the afternoon. Often,
extracurricular activities occupy an hour or so after school; then, they have an hour or so
of homework. At this time, it is around five o’clock in the afternoon, a time when
parents begin to arrive home. My plea to the commission here is not to let parents take
the easy way out. Parents shold not rely on broadcasters to provide addditional
educational guidance that their children may need. The growing distance between
children and parents would only be furthered by such a decision.
Parents will gain a false sense of security in allowing their kids to watch TV. One
study already shows that “parents and kids spend a quarter of their time together
watching TV.“‘ a This time spent watching TV means less time for talking, interacting
and establishing a friendship with one another. Parents may respond that at least they are
learning something. It is helpful to their education. However, parents should first
consider studies which address this argument.
Studies reveal that the more children watch TV, the more likely they are to
underachieve in academics. In addition, researchers notice a connection between the
” Id.
” wwwpink- bubble. com/ subcategories/ media. hvguidance
244
amount of TV watched by a child and the likelihood of developing attention deficit
disorder (ADD) or attention deficit hyperactive disorder (ADHD). The connection is
obvious. The rapidly changing TV screens help form a child’s brain waves. While
parents may believe that more educational TV will benefit children, children who watch
more TV have less creative and imaginative skill. A child grows accustomed to the
frenetic pace of television whether it be from changing from channel to channel or
watching the images on one channel change at a rapid pace. l9 Kids should be outside
playing and exercising; instead of inside watching Nickelodeon game shows which have
children diving into sundaes and running obstacle courses.
Conclusion
As technology progresses at a rapid pace, the FCC is trying its best to ensure that
the public’s interests are not being left behind. However, the increased enforcement of
public interest obligations is not the way to accomplish that objective. Broadcasters have
lived up to their responsibility and will continue to do so on their own. By allowing them
to police themselves, they will able to compete with other mediums while still providing
the public with educational programming in the children’s arena as well as the political
advertising venue. Therefore, additional regulation will merely hamstring the
broadcasters. Thank you for your consideration.
Sincerely,
Alex Waddey
I9 www. limitv. org/ tvaddadhd
8
245
March 17,200O
April M. York
301 Cheshire Drive #86
Knoxville, TN 37919
Federal Communications Commission 445 12th Street
Room TW- A306, SW
Washington, DC 20554
Re: Public Comment in response to the FCC’s Notice of Inquiry;
MM Docket No. 99- 360; FCC 99- 390; 65 FR 4211;
Public Interest Obligations of Television Broadcast Licensees
Dear Commissioners:
I am a graduate student writing in response to the Commission’s Notice of Inquiry
(FCC 99- 390), adopted December 15, 1999. The Notice of Inquiry indicates that the
Commission is considering whether it should redefine the public interest obligations of
television broadcast licensees in light of the advent of new digital television technology.
I believe that the Commission should seize this opportunity to define the contours of
broadcasters’ public interest obligations and should establish new minimum guidelines to
remedy the lack of sex education for adolescents.
SEXEDUCATIONISINTHERJBLIC~ SINTEREST
Every year, approximately three million cases of sexually transmitted diseases
(S TDs) occur among teenagers, r and approximately one million teenagers become
pregnant.* Birth rates for unmarried teens rose steadily in the 198Os, increasing 62%
from 1980 to 1990 alone, resulting in a rate of 44.8 births per 1,000 women in the 15- 19
’ INSTITUTE OF ~~ EDICINE, THE HIDDEN EPIDEMIC 1 (1997).
’ ALAN GUTTMACHER INSTITUTE, SEX AND AMERICA’S TEENAGERS 4 (1994)
1
.,-__ .- _ ._ ., I _.-. _. -,_.-_ l^._..- .,.. _ ---
246
age group. ’ More than 500,000 teens in this age group gave birth in 1990.4 The statistics
concerning HIV/ AIDS infection and other STDs among this age group were even more
disturbing. The Centers for Disease Control (CDC) indicate that the rate of gonorrhea
among teens increased almost 50% from 198 1 to 1990, with adolescents accounting for
24- 30% of the total reported cases in 1990. ’
Society has responded with a series of locally based sex education programs that
contain a variety of diverse curriculums aimed at curtailing the problem. 6 The good news
is that new CDC statistics analyzing youth behavior between 199 1 and 1997 show that
the percentage of U. S. high school students who have sexual intercourse is decreasing. 7
Furthermore, the use of condoms among sexually active students has increased
dramatically,* and teen pregnancy rates fell four percent in 1997.9 While the reduction in
the number of diseases and pregnancies is good news, a majority of high school students
still engage in sexual intercourse. 1° In fact the number of teens with the AIDS virus
increased 65% between 1991 and 1992 alone.* ’
3 See Stephanie J. Ventura, Recent Tren& in Teen- Age Child Bearing in the United States, 75 STAT. BULL.
Yl. 994).
5 See William Adams, But Do You Have to Teli My Parents? The Dilemma for Minors Seeking HIV Testing
and Treatment, 27 J. MARSHALL L. REV. 495 (1994) (discussing studies on adolescent HIV/ STD rates).
6 See Trends in Sexual Risk Behaviors Among High School Students -- United States 1991- 1997,
MORBIDITY & MORTALITY WKLY. REP. (CDC, Atlanta, Ga.), Sept. 18, 1998,4.
’ See id. at 2
’ See id.
9 MSNBC, Teen Pregnancy Rates Plummet (visited Apr. 29, 1999)
(United States Department of Health and Human Services reports teenage pregnancy rates to be the lowest
since 1973).
lo See id. at 3; see also Bridget Murray, Debates Over Sex Education May Put Teen Health at Risk, APA
MONITOR, Nov. 1996, at 15 (Statistics from the Alan Guttrnacher Institute show that 56% of girls and 65%
of boys have reported having sex by the age of 18).
” See Adams, supra note 5, at 499.
2
-.
247
Society has an interest in ensuring that all children are armed with accurate
information regarding sexual activity. l2 The Institute of Medicine, the World Health
Organization, and the Center for Disease Control agree that “sexuality education is the
best way to prevent pregnancies and sexually transmitted diseases.“ t3 Those people
opposed to sex education believe that “young people who know about sex will have it.“ 14
However, research shows that high school students who understand their sexuality tend to
delay their first sexual experience and to use birth control when engaging in intercourse. l5
A lack of accurate sexual information can lead to a sex education fueled by the media and
peers. l6
The need for sex education becomes evident by examining the common
misperceptions shared by teenagers about sex. An interview of high school girls about
sexual practices revealed an alarming depth of ignorance regarding sexuality.” For
example, one girl believed that taking one of her mother’s birth control pills made her
permanently infertile.‘* Another girl believed if she “only had sex during the middle
of.. . [her] . . ,period, then pregnancy was impossible.“” Yet another eighteen- year- old
woman “thought she could not get pregnant because she believed she was a lesbian. The
woman had unprotected sex with a gay male friend, and became pregnant as a result.“ 20
‘* Id.
l3 Felix E. Gardon, Talking to Your Kia! s About Sexualify (visited Mar. 25, 1999)
~http:// www. siecus. org/ pubs/ pubsOOOl .html>.
” See id.
” See id.
l6 See id. at 379.
‘7 See id. at 393.
” See id.
‘9 See id.
248
THE GOAL OF SEX EDUCATION
The goal of sex education is to provide the young people of our country with
accurate information and various points of view regarding issues of sexuality. By arming
young people with knowledge, many undesirable results of relationships can be avoided.
For instance, a young man may attempt to use coercion to convince his girlfriend to
consent to sex. 2’ This type of coercion involves intimidation by physical aggression or
threats to a person’s sense of self. 22 The classic words in male- female relationships are,
“You would if you loved me.“ 23 Yet, a girl exposed to sexual education would be better
able to mitigate such p10ys.~ ’ Moreover, she may be likely to discuss the issue of sex
with her boyfriend, instead of feeling too embarrassed to talk with him. 25 This discussion
would allow her to express why she can love him without having sex. 26 By equipping
teenagers with the tools of reason, teenage sexual issues can be confronted forthrightly,
and the ignorance that causes teenage pregnancies and sexual diseases can be stymied. 27
Television represents a mechanism capable of reaching all students with an authoritative
method of instruction regarding facts about sexual activity that can help reduce teenage
pregnancy and sexual diseases. 28
*’ See Murray, supra note 10, at 16.
2'SeeN~~~ W~~~, P~~~~~~~~~~~: T~ S~~~~ S~~~~~~~~ W0h~~~ 00~, 142( 1997).
22 See id.
23 See SUZETTE H. ELGIN, GENDERSPEAK, 165 (1993).
24 See WOLF, supra note 2 1, at 143.
*’ See id.
26 See id. at 170.
27 See id. at 168- 7 1.
” Id.
4
.- ^I_ .,.. - .-_. ---..-- . _ I __.” .-. .., ^,_._ ..- “.--~
249
How TELEVISIONBROADCASTERSCANADDRESSTHISPUBLICINTEREST
In its Final Report, the Gore Commission recognized that “federal oversight of
broadcasting has had two general goals: to foster the commercial development of the
industry (and new technology) and to ensure that broadcasting serves the educational and
informational needs of the American people.“ 29 Even with the advent of digital
television, broadcasters remain the public trustees of a public resource and continue to
have an obligation, first and foremost, to serve the public interest. 30 Access to
educational programming is an effective means of serving the public interest. The
nation’s future strength may well depend upon the access of all members of society to
educational resources. No means of communication is as effective an educator as
television. Television is still the most watched and most trusted source of information in
the United States. 31 Specifically, children and adolescents spend many hours each week
watching television.
Although many shows watched by youth address sexuality issues, few offer any
meaningful or informative perspective on sexuality. For example, many of the shows
found on the WB Network depict high- school students engaging in sexual activity, but
few address the consequences of that activity. 32 As a result, viewers are often left with a
29 Final Report, Section II: The Public Interest Standard in Television Broadcasting (Dec. 18, 1998)
3o Telecommunications Act of 1996, Pub. L. No. 104- 104 (codified at 47 U. S. C. Q 151 et seq.) (Feb. 8,
1996); 47 U. S. C. 0 336( a- b) (1999).
j’ “Deciding the Future of Television,” The Digital Beat, Vol. 2, No. 22 (Jan. 2000) (noting that 93% of
Americans watch a television program in the course of a week and 69% of Americans view television as
the most trusted source of information).
32 An anomaly can be found in a recent episode of “Popular,” which depicted a sixteen year old girl faced
with a positive home pregnancy test result after having protected sex with her ex- boyfriend one time. This
episode showed a very real perspective on teenage pregnancy including a dream sequence where the girl’s
teacher became a Las Vegas lounge singer and sang to her about being a pregnant “dirty ho” and “prom
mom on the floor.” By demonstrating one of the risks of sexual intercourse, albeit in a humorous light, the
5
250
misconception about sexuality. Television can correct those misperceptions and educate
those who may not be fortunate enough to have parents or other educators who will
answer their questions and keep them informed. Since television already plays a role in
the sexual socialization of children, broadcasters should be required to use that role
responsibly.
Proposals for Increased Sex Education Programming
To whom much is given, much is required. As digital television expands
broadcasters’ capacities to provide programming through multi- casting, broadcasters’
public interest obligations should be expanded proportionately. Broadcasters could,
through the use of multi- casting, create channels specifically devoted to sex education. 33
While this would be a positive outcome, completely relegating sex education
programming to one program stream may create an “educational ghetto” that is not
commonly watched by adolescents because of a perception that it is like PBS stations.
As a result, broadcasters should be required to meet their public interest obligations on
each program stream they utilize.
Requiring programming on popular channels may be necessary to achieve the
goal of sex education. However, to avoid placing an unreasonable burden on
broadcasters, the form of this programming should be left to the broadcasters’ discretion.
Thus, a broadcaster may choose to air many types of programming ranging from the
episode broke the traditional mold. Unfortunately, many other shows stop with the scene of the couple engaging in sexual activity and never follow up on the emotional or physical consequences of such action.
251
traditional “afterschool special,” to a special news or talk program geared toward
teenagers and devoted to sexual topics, or sexually explicit public service announcements
similar to the “this is your brain; this is your brain on drugs” campaign. When placed
strategically to precede or follow other popular shows, these forms of sex education
programming may reach the desired audience and provide them with needed information.
First Amendment Concerns
Determining exactly what type of programming would fulfill the goal of sex
education may engender dispute and raise First Amendment concerns. However, given
the prevalence of teen pregnancy and STDs today, it should not be difficult to
demonstrate that such programming serves a compelling governmental interest and is
narrowly tailored to achieve that interest. Applying the more common standard used to
evaluate content- based regulation in the television industry, such programming is
rationally related to an important governmental interest. So long as the FCC does not
decide which views adolescents can and cannot hear, this proposal is fully consistent with
the First Amendment and indeed promotes First Amendment values by exposing the
public to a wide range of views on an issue of public concern.
CONCLUSION
The need for children in America to understand the risks and dangers associated
with engaging in sexual activity is obvious. The three million teenagers contracting
sexual diseases and one million teenagers getting pregnant every year can be prevented
33 While this proposal may sound alarming to some, its usefulness in attracting teenagers through a title
such as “Sex TV” may prove successful. Such a station may promote a dialogue between parents and
7
--. .- .” _. _
252
through an effective educational program. This Comment advocates a solution to the
problem of dispersed, inefficient, and ineffective sexual education. Society should teach
children how to deal with their sexuality. By using educational programming to help
teenagers think through situations, the number of sexual diseases and teen pregnancies
can be reduced. We must seize the opportunity presented by digital television to fulfill
television’s potential to serve the public good in this manner.
Sincerely,
April M. Y
children about sexual topics.
8
253
R. Jackson Pope
Page 1
3.17.00
William E. Kennard Chairman
Federal Communications Commission 445 12” Street SW
Room SB- 201H
Washington, DC 20554
March 17,200O
Re: Public Interest Obligations of Television Broadcast Licensees
47 CFR Part 73; MM Docket No. 99- 360; FCC 99- 390
Chairman Kennard:
In response to the Federal Communications Commission’s (FCC) request for public
comments, 47 CFR Part 73, of January 26, 2000, I would like to take this opportunity to
communicate my views regarding the public interest obligations of television broadcast
licensees. As a law student and an active and eager participant in the growing
technological marketplace and culture that includes digital television (DTV) technology,
I feel compelled to express my view that the public interest obligations of broadcast
licensees, particularly those of minimum standards, political discourse, disclosure, and
equal access, should be reconsidered in light of the new capabilities and opportunities
DTV technology provides. Translating the current obligations of the licensees from the
analog to digital format is insufficient because it does not take into account the potential
for impact on our society nor the commercial possibilities that exist in the digital future.
Any diminution or repeal of the current obligations would result in the unjust neglect of
our common “interests, convenience, and necessity” by entities whose overriding purpose
is their own enrichment via a domain belonging to the public. With the proper balancing
of the public interest and the private concerns of broadcasters, it is possible to formulate
a framework of mandatory minimum standards and voluntary, incentive- driven enhanced
standards that will allow the public at large and the broadcasters to take full advantage of
the advent of the digital age.
254
R. Jackson Pope
Page 2
3.17.00
Minimum Public Interest Requirements
I have no doubt that the FCC is receiving numerous comments regarding the public
interest obligations of broadcast licensees. What concerns me is that the majority are
likely from broadcasters and organizations thereof. The ones I have accessed on the
intemet generally advocate the implementation of a voluntary code of conduct that
broadcasters could submit to that would somewhat resemble the public interest
obligations that already exist under the current licensure standards applied by the FCC.
This type of proposal trumpets the virtues of economic incentives and the civic goodwill
of broadcasters in safeguarding the public interest. It is implicit in their contentions that
the marketplace and good will of broadcasters are sufficient to achieve the furtherance of
fundamental public interests. They cite the First Amendment and Section 326 of the
Communications Act as limitations on the regulatory powers of the FCC. The
development of the digital bandwidth and the full economic impact of its
commercialization are too important to be hindered by excessive regulatory initiatives, or
so the argument goes.
To the contrary, I submit that such voluntary incentive- based schemes are, in fact, not
sufficient to effectively or properly guarantee the advancement of the substantial public
interest in this context. There are numerous broadcasters who are not members of the
National Association of Broadcasters or other industry organizations and thus industry-
based initiatives would not necessarily affect them. These broadcasters could comply or
not as was their preference until license renewal without consequence. With that sort of
incomplete ability to self- regulate, it is simply not feasible to allow the broadcasting
industry to operate solely of their own recognizance.
255
R. Jackson Pope
Page 3
3.17.00
That said, a voluntary, incentive- driven scheme of enhanced, aspirational standards
would be an appropriate supplement to a set of mandatory minimum public interest
requirements administered by the FCC under the authority conferred upon it by Congress
in the Communications Act of 1934. ’ Under such an approach, all licensed digital
broadcasters would be covered at least with respect to certain “floor” requirements.
Moreover, digital broadcasters with genuine public interests at heart would be more than
welcome, in fact encouraged and rewarded, to go beyond the barest minimums of
compliance. This type of system would encompass the best of both worlds, the market
mechanisms and industry inertia, on the one hand, and independent oversight and
enforcement on the other. A blend of the two would result in the flexibility desired by
the broadcasters to enhance the development of the digital market and the bolstering of
the core public interests the broadcasters have long been charged with serving. A “phase-
in period” of a year or two might be appropriate to see where the industry seems to be
headed and what issues may be important which are not yet apparent. That would
prevent an undue burden from falling upon broadcasters considering they would have
considerable notice of what will be expected of them upon full implementation of the
standards.
Political Discourse
An exciting area in which the expanded capabilities of DTV promise to command
great attention and generate much comment is that of the role of broadcasters in
promoting political discourse, including that of local, regional, and national politics. This
role has been a significant aspect of the public interest obligations of the broadcasting
industry since the earliest regulation of the medium. Broadcasters have long been
’ Notice of Inquiry, In the Matter of Public Interest Obligations of TV Broadcast Licensees, MM Docket No. 99- 360, p. 1- 2.
256
R. Jackson Pope
Page 4
3.17.00
required to allocate certain amounts of airtime during certain time periods to political
candidates and for debates, issue fora, as well as other events and happenings of political
import. From the earliest days of American democracy, it has been widely asserted that
the media plays a crucial function in the maintenance of an “informed, participatory, and
self- governing citizenry.“ 2 Television has become the primary source of political
information and access to public debate. Therefore, the importance of the promotion of
political discourse remains, regardless of the technological nature of the system over
which it is transmitted. Digital or analog, broadcasters have an continuing obligation to
provide access to airtime for political programming and public affairs programming.
Given the current state of our stagnant partisan political discourse, I submit that now
more than ever, is the public interest in democracy implicated by broadcasting issues, in
this case, the transition from analog technology to the digital revolution and DTV
licensees obligations.
The need for reform of our political system, made so readily apparent everyday in the
commercial media, is well served by the media revolution that is taking place, including
but not limited to DTV. The primary blights on our system - the partisan wrangling, the
hegemony of the special interests, the campaign finance morass, the need for which could
be obviated by enhanced access by and to the common citizen - are entrenched. The
untold potential of broadband digital technology is very promising in regard to addressing
these problems. It contains the possibility of near universal access of the citizenry to the
political arena and of those in the political arena to the citizenry. The expediency of
special interest organizations, which purport to give deserving people a more salient
voice but result all too often in undue influence for the undeserving, could be countered
2 “Making Media Democratic,” Robert McChesney, Boston Review Online, http:// bostonreview. mit. edu/ BR23.3/ mcchesney. hti
257
R. Jackson Pope
Page 5
3.17.00
by “virtual access” to legislative and administrative bodies, all with the ease of digital
communications. The functionality of political parties in getting a message out and
organizing in furtherance of it could be matched by amplifying the messages of
individuals who could find themselves “inside” the process by virtue of technological
access, all without serving some political machine. The maniacal hoarding of campaign
warchests and the improprieties and “influence peddling” that accompany it could be
rendered obsolete by enhanced access to the electorate made technologically feasible by
digital communications and made available inexpensively pursuant to broadcasters’
public interest obligations.
Substantial reform, first and foremost campaign finance reform, is of the utmost
significance to the continued vitality and strength of our democracy. There is great
opportunity for societal advancement in the discovery and development of new
technologies. We are on the cusp of some of the most remarkable technological feats in
human history. It would be a great shame not to take full advantage of the potential they
represent. Not only should broadcasters be required to maintain their current political
discourse public interest obligations, they should be charged with even greater ones in
conjunction with the reform of our wayward system of governance. Ideas, issues, and
vision could be the principle political currency, rather than connections, favors, and
money. Our “democracy” could finally aspire to be just that, rather than a self- deluding
oligarchy.
Equal Access
DTV likewise portends significant opportunities for the advancement of equal access
to social, political, economic, and cultural power of broadcast media by all people,
258
R. Jackson Pope
Page 6
3.17.00
including people of all races, ethnicities, and disabled persons, and regardless of gender.
The opening of an entire new bandwidth will allow for the return of the analog bandwidth
by the licensed broadcasters. Disenfranchised persons, unable to participate in the
mainstream, established media market, could then have access to these alternatives
thereby circumventing the obstacles they had previously faced. The FCC could distribute
funds in support of this public policy goal generated in part or in whole from the fees it
charges existing broadcast licensees. I would suggest a program of this sort for
implementation once the switchover and simulcasting periods have elapsed and the
digital broadcast licensees return the analog bandwidth. This is a key component in the
continuing effort to provide access to our society’s many opportunities to people
regardless of race, color, religion, national origin, sex, or disability status.
Furthermore, DTV technology will allow disabled persons much greater access to the
world around them. By implementation of closed captioning systems, and the remarkable
datastream capabilities of DTV, blind and deaf persons will enjoy unprecedented access
to information, entertainment, and the electronic marketplace. The FCC should set forth
mandatory minimum requirements, again with voluntary, incentive- driven higher
standards, for the availability of closed captioning, video description services, and
associated technologies in the new digital broadcasting format. A “phase- in” period of
several years would be appropriate given the significant costs involved and the legitimate
interest in avoiding undue burdens on the broadcast licensees.
Disclosure
Finally, I recommend enhanced disclosure requirements pertaining to DTV broadcast
licensees. Increased specificity and access on the near universal licensee website.
259
R. Jackson Pope
Page 7
3.17.00
Implemented together with the mandatory minimum public interest requirements
suggested above, as well as the voluntary, incentive- based enhanced standards, this
would permit public as well as official scrutiny of the broadcast licensees’ compliance,
specifically, and their level of commitment to the public interest, generally. Individual
members of the community would invariably be much more likely to virtually inspect a
licensee’s required public filings via the intemet at their convenience than they would be
to travel to the licensee’s location and physically inspect them. Licensees are currently
permitted to maintain their public file electronically. This simply expands upon that
provision and allows access to the public by means the public is increasingly using as a
tool for civic and commercial behavior.
Conclusion
In conclusion, I would like to remark that while flexibility in implementation and
avoidance of undue burdens upon the DTV broadcast licensees are important goals, the
underlying public policy interests are crucial. They must be preserved at the very least
and enhanced if at all possible. Digital technology is indeed a wonderful opportunity for
this nation, its citizens, and future generations. DTV, in particular, is important due to
the familiarity of the vast majority of Americans with television’s general format, relative
to the intemet or wireless communications technology. To most folks a TV is a TV.
That being the case, this represents an opportunity to include them in the digital
revolution even if they don’t realize they are participating.
Very truly yours,
CC: Glenn H. Reynolds
260
March 17, 2000
Michael L. Berman 301 Cheshire Drive #86
Knoxville, TN 37919
MAR 2 3 2000
Federal Communications Commission 445 12th Street
Room TW- A306, SW
Washington, DC 20554
Re: Public Comment in response to the FCC's Notice of Inquiry;
MM Docket No. 99- 360; FCC 99- 390; 65 FR 4211; Public
Interest Obligations of Television Broadcast Licensees
Dear Commissioners:
I am law student at the University of Tennessee
writing in response to the FCC's request for public comments, 65
Fed. Reg. 4211, (January 26, 2000). The FCC should take this
opportunity in formulating new policy regulations regarding
digital television to protect children from violent television.
In order to serve the public interest, broadcasters should be
required to develop mechanisms to protect children. The
interactive capabilities of digital television make it possible
to require viewers to prove their age.
1
261
Violent Television Significantly Damages Children
Children learn from the events that they watch on
televisi0n. l The behavior that children witness is considered
acceptable behavior and may be reproduced in their everyday
activities. 2 Due to this mimicking or social effect from
watching violent television, people should not be surprised to
read about shootings at elementary and high schools across the
United States. 3 In fact, violence experienced by American
students in public schools is reaching epidemic proportions. 4
The Surgeon General has classified television violence as a
public health problem, and the placing of the TV violence
controversy in the same context as the smoking and lung cancer
controversy accurately frames the issue. ' The 1972 Surgeon
General's report concluded that violence on television does
influence children who view that programming and does increase
the likelihood that they will become more aggressive in certain
ways. 6 In 1982, a landmark report based on ten years of research
from the National Institute of Mental Health concluded that
1 See Eleanor Singer, Reference Groups and Social Evaluations, in SOCIAL
PSYCHOLOGY: SOCIOLOGICAL PERSPECTIVES 90- 91 (Morris Rosenberg & Ralph H. Turner
eds., 1992).
2 W. JAMES POTTER, ON MEDIA VIOLENCE 43 (1999).
3 Id.
4 See M. Furlong, G. Morrison, & J. Dear, Addressing School Violence as Part
of Schools' Educational Mission, 38 PREVENTING SCH. FAILURE 10, 11 (1994).
' See NEWTON N. MINOW & CRAIG L. LAMAY, ABANDONED IN THE WASTELAND: CHILDREN, TELEVISION,
AND THE FIRST AMENDMENT 28 (1995) .
6 Id.
2
262
violence on television affects the aggressive behavior of
There is a wide range of research to support the
detrimental effects that violent programming has on children.*
Further, the short- term effects of viewing violent television
have a longer lasting impact on younger children. g Longer- term
studies are fewer in number, but the studies still conclude that
children watching violent television are more violent than other
chi1dren. l'
One long- term study began in 1960 by assessing the
development of aggression in eight- year- olds in a small upstate
New York town. ll In the course of the study, the researcher
asked children to report on their television viewing and other
activities. 12 The researcher also interviewed teachers and
children to determine, which children were more aggressive or
less aggressive. 13
7 Id.
' See T. VAN DER VOORT, TELEVISION VIOLENCE: A CHILD'S- EYE VIEW 16 (1986).
' See Harris Pack & Glenn Comstock, The Effects of Television Violence on
Antisocial Behavior, 21 COMM. R. 3, 516 (1994).
lo See L. D. Eron & R. G. Slaby, Introduction, IN REASON TO HOPE: A PSYCHOLOGICAL
PERSPECTIVE ON VIOLENCE AND YOUTH 2 (L. D. Eron, et. al., eds. 1994).
l1 See L. D. Eron, Parent Child Interaction, Television Violence and
Aggression, 27 AMER. PSYCHOL. 197, 198 (1982).
I2 See id.
I3 See id.
3
-____ _.".^.. l_-..-----
263
Information from parents about children's television
viewing and the parent's home discipline and family values were
incorporated into the results of the study. 14 At the age of
eight, the research revealed a relationship between a child's
level of aggressive behavior and their television viewing. 15
These children were re- examined at the age of ten and eighteen. 16
The research revealed that the children who watched violent
television at age eight were more likely to display violent
behavior at age eighteen, even though the child's viewing of
violent television had decreased. 17
In the 1980's, the study re- interviewed these children who
were now the age of 3O. l* Interestingly, there was a
relationship between early television viewing and arrest and
conviction for violent interpersonal crimes: spouse abuse, child
abuse, murder, and aggravated assault. 1g Thus, there are long-
term effects of early television viewing on later aggressive
behavior."
I4 See id.
I5 See id. at 199.
I6 See id. at 200- 01.
l7 See id. at 201.
la See id. at 203.
I9 See id.
2o See id. at 209.
4
-.... _ .._ -~ --...,. ..- - -_,,” 1 .l___ l_... _______“_ .-.“._ l.--“-__--_-
264
Current Efforts are Insufficient to Protect Children From
Harmful Television
Over thirty years ago, the FCC began to recognize the
detrimental effects that television could have on children and
requested that broadcasters do a better job of protecting the
nation's children.* l Despite the request for voluntary action
from the private sector, television programming did not change
significantly. 22 Nor is it likely that the private sector will
voluntarily implement mechanisms to prevent children from seeing
violent and sexually explicit television programming. 23 In 1990,
Congress tried to intervene with the passage of the Children's
Television Act. 24 While this agency responded by requiring
broadcasters to air educational children's television, beyond a
passive ratings system, nothing has been done to protect
children from seeing other television programming.* '
21 See Ronald J. Krotoszynski, The Inevitable Wasteland: Why the Public
Trustee Model of Broadcast Television Regulation Must Fail, 95 MICH. L. REV.
2101 (1997).
22 Id. at 2103.
23 Id. at 2104.
24 Pub. L. No. 101- 437 (1990).
25 See Michael J. Palumbo, Broadcast Regulation, Has the Market Place Failed
the Children, 15 SETON HALL LEGIS. J. 345, 398- 99 (1991).
5
.- ._. --.._ . “I .--. I . _*__.. _.__- I____ F.-.--- -----_ l
-..,.
265
Digital Television Can Help Child- proof Television Broadcasts
Since digital television has the capability to be
interactive, the FCC should require that broadcasters develop
technology to "child- proof" violent programs. 26 In other words,
the broadcasters should receive a message that the viewer is
over the age of eighteen. This would allow the broadcaster to
know that the audience receiving the programming has reached an
appropriate age necessary to view violent programming.
While educational television can definitely benefit
children, the requirements for educational television do not
stop children from viewing violent programs. There are many
household items that require "child- proofing" for the safety of
the child. For instance, parents often cover electrical outlets
or buy lighters with child safety features. Like these lighters
with child safety features or pill bottles with child safety
lids, violent television may be rendered harder to access.
However, a parent would h ave to be able to easily access the
information with some degree of privacy. In other words, the
parent would send some information over digital television to
26 See GERALD O'DRISCOLL, THE ESSENTIAL GUIDE TO DIGITAL SET- TOP BOXES AND INTERACTIVE
TELEVISION 2 (1999); see also Eric Gsell et. al ., Digital Television
Interoperability Issues and Progress (visited Mar. 14, 1999)
(explaining the technological feasibility of sending
messages from digital televisions).
266
let the broadcaster know that the viewer is over the age of
eighteen.
Privacy Concerns
While some people may be concerned about privacy, this
proof of age is a minimal intrusion that is common to many other
daily activities. A digital television should only let the
broadcaster know that the viewer is over the age of eighteen and
not collect any other information. This could be accomplished
by attaching a card- swiping device to each television or issuing
a code number to all people over the age of eighteen.
Certainly, the public may be inconvenienced by the need to
prove one's age before watching violent television, but people
have to prove their age for a multitude of activities. For
instance, a person has to prove their age before buying liquor,
buying tobacco, buying pornography, or going to an "R" or "X"
rated movie. By requiring people to prove that they have
reached a certain age, society is protecting children from
harmful substances and information.
Since people are conditioned or expect to prove their age
before experiencing an explicitly violent movie, the public will
probably not mind submitting to "child- proofing" television. In
7
267
fact, broadcasters could send truly violent programming to
viewers over the age of eighteen without being afraid that
children would watch this programming. Thus, the public will
appreciate the ability to be able to view adult- oriented
programming, and the adults will not mind this new confirmation
of age before viewing these new shows on digital television.
Conclusion
The FCC should take this opportunity in formulating new
policy regulations regarding digital television to protect
children from violent television. In order to serve the public
interest, broadcasters should be required to develop mechanisms
to protect children. The interactive capabilities of digital
television make it possible to require viewers to prove their
age.
Sincerely,
Michael L. Berman
268
_l__ l-_.,-- --..-. -- I”
FORMER STAFF MEMBER TO
U. S. CONGRESSMEN
WILLIAM L. “BILL’. JENKINS
JAMES H “JIMMY” QUILLEN
FROM THE DESK OF
BEN M. ROSE 116 HIGHWOOD DRIVE
KNOXVILLE. TENNESSEE 37Y20
MAR 23 TELEPHONE (423) 609- 7769 2000 March 17, 2000
Ms. Magalie Roman Salas
Office of the Secretary
Federal Communications Commission
445 Twelfth Street, S. W., TW- A325
Washington, D. C. 20554
Dear Ms. Salas,
I am writing this letter regarding the Notice ofProposed Rulemaking, “Public Interest
Obligations of Television Broadcast Licensees,” January 26,2000, MM Docket No. 99- 360, FCC
99- 390,47 CFR Part 73, and will comment on public interest requirements of broadcasters in the
age of digital television, proposals by the Commission related to enhancing diversity in this new
medium, and in general access to the media by political candidates.
As a former legislative assistant to two members of the U. S. House of
Representatives, I have had a general exposure to these and other related telecommunications issues.
However, this comment is a product of a legal course on Administrative Law at the College of Law,
University of Tennessee- Knoxville, Tennessee. In this regard, it should be noted that the views
contained herein do not necessarily represent the views of my former employers.
INTRODUCTION
Before commenting on specific areas in the summary of the notice of inquiry, I think
it is important to keep in mind the general spirit of the Telecommunications Act of 1996. In my
269
Ms. Magalie Roman Salas
March 17, 2000 Page 2
view, this enactment which comprehensively reformed telecommunications for the first time in
nearly 70 years was meant to effectively deregulate’ television, telephone, and other important
communications industries. By deregulating these industries, the theory is that competition is
increased, prices are reduced, and innovations are created more rapidly.
Unfortunately, this goal has not yet become a reality. I believe this result is the
product of three main ingredients: (1) an ambiguous statute passed by the U. S. Congress and signed
into law by President William J. Clinton, (2) a cadre of special interests including various television
broadcasters, cable and satellite companies, long distance and local telephone communications
corporations, and numerous others, and (3) an activist federal agency, namely the Commission,
which aims to produce new regulations to justify its bureaucracy rather than enforce its current
regulations. Taken together, these have radically distorted the dream of a truly deregulated
telecommunications industry, and at best, our Nation can now only hope for this reality in the distant
future.
As Chairman of the House Telecommunications Subcommittee W. J. “Billy” Tauzin
recently remarked, the Telecommunications Act of 1996 was made as ambiguous as possible to get
it passed and signed into law. Special interests do, have, and always will influence the legislative
process despite even the most well intentioned reforms. However, in my mind there is simply no
excuse for overactive administrative agencies that are more concerned about protecting their own
I In reality, of course, nothing in Washington, D. C. is actually “deregulated,” i. e. freed
from all oppressive government regulation. This is a misnomer. Rather, these areas are “re-
regulated” to better enhance these important goals and at the same time retain accountability.
270
Ms. Magalie Roman Salas
March 17, 2000
Page 3
bloated bureaucracies than the welfare of the American public. In this vein, I would like to comment
on the public interest requirements of television broadcasters in this digital age, diversity proposals,
and enhancing access to the media by political candidates.
PUBLIC INTEREST REQUIREMENTS
47 U. S. C. 9 336( h) p rovides, “Nothing in this section shall be construed as relieving
a television broadcasting station from its obligation to serve the public interest, convenience, and
necessity . . . the television licensee shall establish that all of its program services on the . . .
spectrum are in the public interest.” I would encourage the Commission to read this statute as
narrowly as possible. There is nothing in 5 336( h) which imposes additional public interest
requirements on digital television, despite the contentions of the Advisory Committee on Public
Interest Obligations of Digital Television Broadcasters, People for Better TV, and indeed the Federal
Communications Commission itself.
Rather, digital television broadcasters should be held to the current public interest
requirements for regular analog licenses and nothing more. This interpretation is within the
boundaries of the statute. Although perhaps beyond the scope of this notice of inquiry, I would
encourage both the Congress and the Commission to go beyond these boundaries in the original
spirit of the Telecommunications Act of 1996 and allow the free market to better influence these
public interest requirements with a few exceptions. These exceptions include notification of the
public in times of emergency or disaster, prohibitions on broadcast of obscene material for minor
viewers, and some limited services for the disabled.
271
Ms. Magalie Roman Salas
March 17. 2000
Page 4
In considering the public interest, I am often aghast at the presumption by some that
this interest requires additional oppressive regulation and not an enhancement of the free market.
With our current economic boom, it should come as no surprise even to the bureaucracy of the
federal government that often the public interest can best be served by deregulation and allowing our
free enterprise system to fulfill the needs of the polity. Imagine, if you will, a brave new
telecommunications world relatively free of regulation. In this case, digital television that is
constrained only by requirements to provide services for emergencies, protect children, and in a
limited capacity provide services for the disabled.
A. Emergency Services
In paragraph 18 of the notice of inquiry, the Advisory Committee Report is quoted
as stating, “Broadcasters should work with appropriate emergency communications specialists and
manufacturers to determine the most effective means to transmit disaster warning information. The
means chosen should be minimally intrusive on bandwith and not result in undue additional burdens
or costs on broadcasters.” This recommendation is appropriate although due consideration needs
to be given for privacy concerns. 2 Our federal government has a responsibility to protect the public
from harm as reflected in the preamble to the U. S. Constitution.
1 According to the notice of inquiry, the Advisory Committee Report suggests new
ways that digital technology can help alert citizens to certain disasters or emergencies including
“pinpointing specific households or neighborhoods at risk.” While this is certainly an admirable
goal, I believe that steps would need to be taken to protect the identities of these individual
residences or in some cases neighborhoods. Also, there should be consideration given to state and
local agencies in performing these functions.
272
Ms. Magalie Roman Salas
March 17, 2000
Page 5
It provides in pertinent part “We the people of the United States, in Order to . . .
insure domestic Tranquility . . promote the general Welfare . . . do ordain and establish this
Constitution for the United States of America.” While providing emergency services could be
performed in large part by the free market, I believe our federal government should require
broadcasters to provide for this service. The Commission should enact regulations after appropriate
comment from the public and due consideration by the broadcast industry, to make as a requirement
for licensure that digital television broadcasters provide some type of emergency warning or service
for disasters or other similar emergencies. 3
B. Obscenity
While much ado has been made recently about the amount of violence on broadcast
television and several remedies have been proposed, relatively little has been mentioned about the
alarming increase in sexual content and depictions of sexuality on broadcast television, not to
mention cable and satellite subscription services. Whether it is “NYPD Blue” or the briefly popular
sitcom “Ellen,” our children are being infiltrated with messages of sexual promiscuity and
demoralization of sexual preferences. As I understand the current federal law, under the Children’s
Television Act of 1990 broadcasters are “prohibited from airing programming that is obscene, and
3 I do not mean that the Commission should formulate a standardized plan or system
which would be applied to all digital broadcasters. Such micromanagement will only lead to
inefficiency and ultimately failure to achieve the stated goal of warning the public about
emergencies.
273
Ms. Magalie Roman Salas
March 17, 2000 Page 6
restricted from airing programming that is ‘indecent’ during certain times of the day.‘ 14 It is my
belief that our Constitution also provides for additional protections.
Although admittedly not an immediate issue in this notice of inquiry, I would
encourage the Commission to interpret this and similar statutes dealing with obscenity in the
broadest sense. Obscenity, unfortunately, is one of the few areas that the free market has failed to
appropriately regulate. Here, like with emergency services, is an opportunity for the federal
government to play a role. Such a notion may be known as “moral capitalism.” The Commission
should enact regulations again after appropriate comment from the public and due consideration by
the broadcast industry, to make as a requirement for licensure that digital broadcasters eliminate any
“indecent” m “obscene” programming during any time of the day with regard to sexual content.
Such action would be in the public interest and especially in the interests of minors without proper
parental authorities. While I certainly have regard for the rights contained within the 1 ‘* Amendment,
our children and their future should at times come before mere expression and entertainment.
C. Services for the Disabled
Finally, in paragraph 24 of this notice, People for Better TV ask the Commission to
emphasize the “‘ expansion of services to person [sic] with disabilities.“ ’ In a similar vein, the
Advisory Committee recommends that digital broadcasters take “‘ full advantage’ of new digital
technologies to prove ‘maximum choice and quality for Americans with disabilities.“ ’ Of course,
maximum choice will only come from the free market. However, I believe that in this area of
‘l See paragraph 2 of this notice.
274
Ms. Magalie Roman Salas
March 17, 2000
Page 7
disability services there is also a role for the federal government and which is provided by
the Constitution.
Part of these services are already being offered by broadcasters including closed
captioning for the hearing impaired. “[ Cllosed captioning rules require broadcasters . . . to caption
new programming gradually, according to a phase- in schedule, and to caption 75% of ‘pre- rule’
programming by 2008.‘ 15 This policy is working and should be maintained along this schedule. In
addition, as I understand the issue of closed captioning, these efforts are also being helped by private
enterprises like Bell Atlantic and others.
The Commission should enact regulations after appropriate comment from the public
and due consideration by the broadcast industry, to make as a requirement of licensure that digital
television broadcasters provide some type of services for individuals with disabilities including
ancillary services. However, due care should be taken to prevent overburdening broadcasters with
these requirements and locking them into broad unfunded federal mandates as are contained within
the American with Disabilities Act of 1990.
Providing emergency services, protecting children from obscenity, and providing
disability services should be the only requirements imposed by the Commission in this area. I
vigorously object to the Advisory Committee’s proposal that there be “minimum public interest
requirements.” The Commission should work with the digital broadcasters in a flexible manner, and
in my opinion, minimum requirements militate against this important goal.
5 See paragraph 26 of this notice.
275
Ms. Magalie Roman Salas
March 17, 2000
Page 8
DIVERSITY REQUIREMENTS
I want to congratulate the Clinton Administration for the appointment of Chairman
William E. Kennard, who as an African- American has been a role model for all Americans.
However, I am dismayed by the fact that this notice of inquiry contains a section which amounts to
what I fear may be an advocacy of affirmative action with a foundation of race and gender- based
preferences. While it is true that 47 U. S. C. 9 309( j) contains language directing the Federal
Communications Commission to formulate competitive bidding rules which would promote the
economic opportunities of racial minorities and women, I would remind the Commission that this
statute does not contemplate institution of an affirmative action, racial quota, or similar schemeper
se. This interpretation would also seem to go against the spirit of the Administration’s policy of
“mend it, don’t end it.”
However, I believe that such a scheme was contemplated and proposed by the
Advisory Committee. In its report, the Committee recommended “out of the returned analog
spectrum one new 6 Mhz channel for each viewing community to be reserved for noncommercial
purposes, including educational programming directed at minority groups.” One need not look any
further than Black Entertainment Television (BET) to determine why this is a poorly conceived idea.
As indicated by the success of BET, the free market should determine whether, if all, it is in the
public interest to have channels dedicated exclusively to minorities in our country.
The Commission should not misinterpret 9 309( j) and enact regulations which are in
essence affirmative action or racial quota programs that discriminate on the basis of skin color.
276
Ms. Magalie Roman Salas
March 17,200O
Page 9
Moreover, the Commission should explicitly reject the Advisory Committee’s recommendations
which would require broadcasters to provide “black,” “brown,” or similar minority focused
television channels. Finally, I would caution the Commission to not be overly influenced by special
interest groups like La Raza and the National Association for the Advancement of Colored People
(NAACP) which have their own agendas which may arguably be different than that of a majority
of their constituencies.
CAMPAIGN REFORM AND THE MEDIA
Recently, the issue of campaign finance reform, although of relative unimportance
to a majority of the American electorate according to recent polling, has been at the forefront of our
public debate. Alas, a proposal of requiring television broadcasters to essentially donate free
television time for political candidates is contained in this summary of the notice of inquiry. Similar
proposals are contained in the famed and yet ill- conceived McCain- Feingold Campaign Reform Bill
and other legislative campaign reform plans. I believe that such reforms are shortsighted and should
be discouraged by the Commission.
Interestingly, the area of campaign reform is representative of the view that the
Commission is an activist federal agency which aims to produce new regulations to justify its
bureaucracy rather than enforce its current regulations. For example, the Telecommunications Act
of 1934 instituted the so- called “Fairness Doctrine.“” This doctrine essentially provides that
h Telecommunications Act of 1934, 0 3( h). During the rise of the Rush Limbaugh
Show, a conservative political radio program, many commentators felt that the “Fairness Doctrine”
should have been used by the Commission to provide a more liberal political view on AM Radio.
277
Ms. Magalie Roman Salas
March 17, 2000
Page 10
broadcasters should give equal time to political candidates. ’ However, the doctrine is infrequently
enforced by the Commission and complicated by the protections of the 1” ’ Amendment. Most
certainly, this criticism is not limited to this particular statute.
The Advisory Committee recommended in its report that television broadcasters
voluntarily provide 5 minutes each evening for “‘ candidate- centered discourse” ’ 30 days before an
election. Although not officially recommended, a majority of the Committee desired to have
broadcasters required to provide up to 20 minutes of what is basically “free” political airtime. Once
again, even in this political campaign context, the best remedy is found in the free market. Political
candidates which raise money given to them voluntarily by individuals, corporations, unions, and
other special interests should be allowed to spend it, if they so choose, on television advertising.
Candidates are perfectly free to choose not to purchases advertisements and spend their resources
on other media, and this campaign freedom should be left unencumbered by federal regulations.
7 In fairness to the Commission, the decision of the U. S. Supreme Court in FCC v.
A4iclwest Video Corp., 440 U. S. 689 (1979) in the context of cable television regulations should be
noted. In regard to the so- called “fairness doctrine,” a majority of the court stated:
The language of 9 3( h) is unequivocal; it stipulates that broadcasters
shall not be treated as common carriers. As we see it, 5 3( h),
consistently with the policy of the Act to preserve editorial control of
programming in the licensee, forecloses any discretion in the
Commission to impose access requirements amounting to common-
carrier obligations on broadcast systems.
Midwest Video Corp. at 140 n. 9.
278
Ms. Magalie Roman Salas
March 17, 2000
Page 11
In addition, such requirements raise similar 1” ’ Amendment questions as does the so-
called “Fairness Doctrine.” The federal government and its associated bureaucracy cannot determine
what is fair and which political candidate deserves “equal time.” It is a self- interested party and will
undoubtedly be biased by those candidates which appreciate its needs. Rather, the free market and
private enterprise system are the best arenas for this campaign discourse.
This view is reflected by the notice of inquiry which states that in 1996 the National
Association of Broadcasters (NAB) voluntarily devoted $148.4 million to political campaigns. In
addition, private corporations like A. H. Belo provided free airtime for candidates. It is my firm
belief that this kind of activity can only be supported by the free enterprise economic system of our
Nation, and not by so- called “reform regulation.”
The Commission should resist proposals that as apart of licensure digital broadcasters
voluntarily provide free airtime to candidates, and it should explicitly reject any mandatory
requirements recommended albeit not officially by the Advisory Committee.
CONCLUSION
As a former federal government employee, I realize that most employees and even
federal agencies have the best intentions at heart. In the words of one of my former employers, “The
people of government are good, it is just the bureaucracy that gives us a bad result.” It is my hope
that the Commission will seriously consider these brief comments and more importantly the original
drafters’ intent of the Telecommunications Act of 1996.
279
Ms. Magalie Roman Salas
March 17, 2000
Page 12
The Commission should work with broadcasters to ensure that as a requirement for
licensure digital television broadcasters provide some kind of emergency services, protection of
children against obscenity, and limited services for the disabled. However, the Commission should
explicitly reject proposals for affirmative action and free airtime in the brave new world of digital
television
Sincerely,
-- -.- -... .-_ _ . .- ..,..___ l_ l I__ -
280
To: R~ a3v&- J Magalie Roman Salas, Secretary, Federal Communications Commission
From: Darren Mitchell MAR 2 3 20(-& j
cc: Professor Glenn H. Reynolds
Date: March 17,200O
Re: Proposed Rulemaking (Docket No. FCC 99- 390), Public Interest Obligations of
Television Broadcast Licensees, 65 Fed. Reg. 4211 (January 26,200O).
Secretary Salas:
I am a third- year law student at the University of Tennessee College of Law, and I am writing to
add my voice to the public debate over the proper scope of public interest activities/ obligations
required of broadcasters in the digital television age. There are a number of topics in this area
that I would like to comment on; such as children’s programming, increasing diversity in the
broadcast industry, and making television more accessible to people with disabilities. However,
in the interests of brevity I will confine myself to commenting on that section of the proposed
rulemaking dealing with enhancing political discourse.
The first question one might ask is whether enhancing political discourse is a proper, or even
desirable, role for television broadcasters. However, it may be a little late in the process to ask
this question since “[ tlhe Commission has long interpreted the statutory public interest standard
as imposing an obligation on broadcast licensees to air programming regarding political
campaigns.” 65 Fed. Reg. 42 11,4216 (January 26,200O). Additionally, one might wonder if
“airing programming regarding political campaigns” necessarily promotes or enhances political
discourse. If the programming in question is a debate between candidates, or a one- on- one
281
interview of a candidate by a journalist, or a news report/ documentary about a political issue or
campaign, or similar programming, then such programming most likely does enhance political
discourse. On the other hand, if the programming in question involves paid political
commercials, or the quadrennial love- ins of the respective national parties, then the political
discourse, although certainly affected, is by no means enhanced. However, the question
presented is not whether television broadcasters should be required to enhance political
discourse, but rather to what extent television broadcasters should be required to enhance
political discourse and what form such enhancement will take. Specifically, “whether, and how,
broadcasters’ public interest obligations can be refined to promote democracy and better educate
the voting public.” 65 Fed. Reg. 42 11,42 16 (January 26,200O).
The question whether broadcaster’s public interest obligations can be refined is, of course,
distinct from the question whether said obligations should be refined. The simple answer is that
any and all products of human endeavor can be refined. For example, Article V of the United
States Constitution provides a mechanism whereby the Constitution can be amended when
deemed necessary. Amendment is a type of refinement, and the Constitution has been so
“refined” twenty- seven times to date. Therefore, the public interest obligations in question can
undoubtedly be refined to promote democracy and educate the voting public, and I suggest a few
such refinements below. However, whether broadcasters’ public interest obligations can be so
refined in such a way as to take advantage of the unique aspects and capabilities of digital
television is a separate question entirely.
2
.” _“_” ^ ._.___ “.“.-- ~- I .--.-
282
I am neither a digital television expert, nor an authority on communications law. Therefore, I am
not in a position to recommend refinements specific only to digital television. At least, not in the
area of promoting democracy or educating the voting public. The suggestions that follow are as
applicable to analog television broadcasters as to digital television broadcasters, with one
exception. Digital broadcasters can multicast separate channels simultaneously over the same
assigned frequency. Whatever rules are adopted to enhance political discourse should ensure
that broadcasters are prevented from segregating all of their political programming on one
program stream. Instead, broadcasters should be required to offer such programming on each of
its DTV program streams. Furthermore, such programming should not be cumulative. For
example, if the Commission were to adopt the Advisory Committee’s recommendation that
broadcasters provide five minutes each night between 5: 00 p. m. and 11: 35 p. m. for “candidate-
centered discourse” thirty days before an election, then broadcasters should be required to
provide five minutes per night on each program stream rather than five minutes per night spread
out over multiple program streams. If a broadcaster multicasts over five program streams
simultaneously, then said broadcaster would have to provide five minutes of “candidate- centered
discourse” on each program stream; not one minute per program stream for a total of five
minutes.
A stated goal of the proposed rulemaking is to improve candidate access to television and thus
improve the quality of political discourse. I believe that the premises underlying this goal are
faulty in that there is no evidence that accomplishing the former will necessarily result in the
latter. In fact, there is considerable evidence to the contrary as demonstrated by the proliferation
of negative attack ads in recent political campaigns. Be that as it may, the following suggestions
3
283
are made under the assumption that greater candidate access to television is a desirable objective
and that such increased access will have positive effects on the political discourse of the nation.
Currently, television broadcasters are required to provide equal access to candidates in political
campaigns. If they provide airtime to one candidate, then they must provide equal time to the
opposition candidate. 47 U. S. C. A. 5 315( a). This rule is subject to various exceptions such as
coverage of a candidate in a bona fide news story. Additionally, the rates that broadcasters can
charge political candidates are limited. 47 U. S. C. A. 0 3 15( b). I am not aware of any proposal to
refine or eliminate the equal access provision. Instead, the majority of reform efforts focus on
charging candidates for airtime. Specifically, whether candidates for public office should be
charged for use of the public airwaves at all. The present system, so the argument goes, favors
the well- financed candidate at the expense of underfunded or marginal candidates. As a result,
there have been numerous proposals to level the playing field by providing free an- time to
candidates. The challenge, as I see it, is how to provide free airtime in such a way that will
reasonably guarantee that the political discourse is enhanced. Free airtime to deliver negative
attack ads do not enhance political discourse. Nor, at the other extreme, do political ads that
merely extol the qualities and patriotism of the candidate without addressing the issues.
There are two constants in political campaigns whether on the local, state, or national level. The
first constant is that the best way to judge the relative strengths and weaknesses of the candidates
is to have the candidates debate the issues. People just naturally like to comparison shop before
deciding on a purchase. In this respect, choosing a candidate for public office is no different
than choosing a personal computer or a washing machine. “[ Tlhe ultimate good desired is better
4
..“_- l-._--. “.~ --,-~. .-_ .- - ..---.
284
reached by free trade in ideas . . . the best test of truth is the power of the thought to get itself
accepted in the competition of the market.” Abrams v. United States, 250 U. S. 616,630,40
S. Ct. 17, 22, 63 L. Ed. 1173 (1919) (Holmes, J., dissenting). Justice Holmes’ celebrated
“marketplace of ideas” is just as applicable, if not more applicable, to political campaigns as any
other area of free speech. As is apparent to anyone who has witnessed a political campaign in
recent years, candidates will not address the issues unless forced to, and sometimes not even
then. If left to their own devices, candidates will produce an endless parade of advertisements
attacking their opponent or praising their own character. However, a debate forces candidates to
address the issues, or at least a debate comes closest to forcing candidates to address the issues
than anything else short of the rack or sodium pentothal. Therefore, public, contested political
debates enhance political discourse, and should be encouraged as much as possible.
Which brings us to the second constant in political campaigns. The front- runner will do
everything in his or her power to avoid a debate on the issues because he or she has everything to
lose and nothing to gain. If forced to debate, the front- runner typically will demand concessions
for agreeing to participate. These concessions include, but are not limited to, location, length of
debate, format of debate, scope of questions, time provided for answers, and types of questions.
Conversely, those candidates who trail in the polls will struggle mightily to force a debate
because they have everything to gain and nothing to lose by debating the front runner. These
candidates will accede to almost any conditions demanded by the front- runner. The result is
fewer debates, or debates so limited in scope and format as to not deserve to be called a debate.
Consequently, the best forum available to enhance political discourse and educate the voting
public is seldom utilized.
285
The dilemma is clear, The public airwaves, whether provided free of charge or purchased, will
be used by candidates in ways that do not enhance political discourse. Debates, the best
available forum for enhancing political discourse, are seldom used, or used under less than
optimal conditions. Broadcasters can not regulate the content of political commercials, even if
the airtime is provided free of charge. Therefore, we can not force candidates to stop running
negative ads. Furthermore, a candidate can not be required to participate in a debate. One
possible solution to both problems is to exchange airtime for participation in political debates.
Candidates who participate in debates will receive free airtime on a pre- determined schedule.
For example, a candidate who participates in a debate will receive five minutes of free airtime
each night between 5: 00 p. m. and 11: 35 p. m. for a specified period of time. Broadcasters will
provide additional free airtime for each subsequent debate in which a candidate participates.
Under this proposal everybody wins. Broadcasters fulfill part their public interest obligation,
candidates receive free airtime, which they are free to utilize as they wish, and the public gains a
greater understanding of the various candidates’ views on the issues.
Of course such a plan has the potential to overwhelm individual broadcasters and convert them
into virtual C- SPAN clones. All politics, all of the time. If individual broadcasters are required
to provide free airtime to every candidate for political office from dog catcher to President of the
United States, then there will be very little time remaining for other programming. Obviously,
some limits are necessary. Perhaps only campaigns for certain public offices will be eligible for
free airtime, or the amount of free airtime will be limited. The goal is to increase participation in
debates and thereby improve political discourse, not to provide free airtime to every candidate
for public office.
286
In addition, the program outlined above may be subject to attack on First Amendment grounds.
Inevitably a situation will arise in which a candidate for public office will pay for airtime
provided free to other candidates for the same office. The resolution of such disputes will, of
course, be dependent upon the facts of each case, and it is impossible to anticipate every situation
that may arise. Suffice it to say that if the proposed rule is drafted carefully so that every
candidate for a given public office is afforded the same opportunity to participate in a given
debate and thereby receive free airtime, then such incidents will be rare.
Enhancing political discourse, promoting democracy, and educating the voting public are
important and worthy goals for broadcasters, and other mass media, to undertake, voluntarily or
otherwise. Furthermore, it is incumbent upon government to promote these goals whenever and
however possible. Having said that, it is important to stress that stating an objective is not the
same as accomplishing it. Vague mandates and empty platitudes do not make sound, or
workable, policy. Providing a forum for political discourse is ineffectual unless the forum is
used for political discourse, and not for ad hominem attacks, or self- aggrandizing political
puffery. However, regulating the content of speech is as abhorrent and wrong- headed as
censoring speech in its entirety. But if candidates for public office are allowed to use the public
airwaves for political discourse, then surely it is possible to promulgate simple, common sense
rules to ensure that at least some political discourse occurs. I believe that exchanging airtime for
participation in debates is such a rule.
Respectfully,
Dan- en Mitchell
7
._ -.--.“---“.-- _--_- l_ l-- l- l- l
287
BEFORE THE FEDERAL COMMUNICATIONS COMMI##@ ’ 3 2ooo
RE: Public Comments on Public Interest Obligations of
Television Broadcast Licensers, MM Docket No. 99- 360, FCC 99- 390
Introduction and Background
This comment is in response to the notice of proposed rulemaking, published
January 26,2000, with summary of the Commission’s Notice of Inquiry, FCC 99- 390,
adopted December 15, 1999. Notice of Proposed Rulemaking, 65 Fed. Reg. 42 1 l- 01
(Jan. 26,200O). The FCC noted that it was seeking comment on how broadcasters can
best serve the public interest as they transition to digital television transmission
technology.
As a second year law student at the University of Tennessee, I will tailor this
comment specifically as a general legal and public policy response to the Commission’s
request for discussion regarding the extent that broadcasters’ public interest obligations
can be refined to promote and enhance political discourse. There have been legislative
proposals, highlighted in the Notice of Inquiry supplement to the Notice of Proposed
Rulemaking at 42 16, and include providing qualified political candidates with limited
amounts of free access to the airwaves as part of broader campaign finance reforms. ’
In effect, I contend that the Commission has constitutional authority to regulate
broadcasters’ dissemination of political information. With such authority, the FCC
should embrace mandatory measures, including free air time to candidates of greater
duration than the five minute “sound bites” proposed by the Advisory Committee on
Public Interest Obligations of Television Broadcasters (“ PIAC”).
’ See S. 25, 105th Cong., 1st. Sess. 102 (1997) (providing qualified Senate candidates with 30 minutes of
free broadcast time except if there are more than two candidates, in which case all the candidates together
get a total of 60 minutes free time).
1
288
Constitutionality of FCC Regulation of Political Discourse
In the FCC’s adoption of Notice of Inquiry in December 1999, FCC 99- 390,
Commissioner Harold Furchtgott- Roth chastised the Commission for its “misguided
application[] of our public interest authority” to improve political discourse through “free
air time” to political candidates. He suggests that such proposals exceed the agency’s
authority in that they may be unconstitutional and simply bad policy because such a
proposal would unduly burden the industry by imposing a hidden tax. 2
Congress consistently has required that broadcast licenses be assigned and
renewed on the basis of the public interest, convenience, and necessity. 3 Broadcasters,
therefore, are public trustees with a fiduciary obligation to serve the public through their
programming. As Chief Justice Burger wrote, then acting as judge for the D. C. Circuit, a
“broadcaster seeks and is granted the free and exclusive use of a limited and valuable part
of the public domain; when he accepts that franchise it is burdened by enforceable public
obligations....[ A] broadcast license is a public trust subject to termination for breach of
duty.“ 4
Although every broadcast television and radio station in this country operates
under these valuable licenses to use this public property, broadcasters are not required to
pay for them. In response, the Commission is delegated the authority to supervise “the
2 FCC Notice of Inquiry, FCC 99- 390, Dec. 20, 1999 at 65- 80.
3 FCC Notice of Inquiry, FCC 99- 390, Dec. 20, 1999; 47 U. S. C. A. 307( c)( 1).
4 Charles W. Logan, Jr. Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of
Broadcast Regulation, 85 Calif. L. Rev. 1687 (Dec. 1997) (quoting Office of Communication of United
Church of Christ v. FCC, 359 F. 2d 994.1003 (D. C. Cir. 1966))
2
289
traffic” of the communications airwaves. 5 The statutory public- interest mandate “puts
upon the Commission the burden of determining the composition of that traffic.“ 6
While the Commission has eliminated a number of programming rules,
broadcasters still must affirmatively seek to promote “public interest” programming.
Broadcasters have the general requirement to air programming responsive to the needs
and interests of their local communities. 7
For example, both Congress and the FCC have established rules to ensure greater
access to the airwaves for political candidates. In particular, broadcasters must provide
“reasonable access” to candidates for federal public office and equal opportunities to
opposing candidates of all candidate- users of airtime.* The Communications Act also
limits the advertising rates candidates may be charged to the “lowest unit charge” paid by
the station’s “most favored commercial advertisers.“ g
Although the FCC’s regulatory regime has been in place for nearly a century’O, as
Charles Logan indicates, it is primarily premised on the constitutionally tenuous
“scarcity” rationale set forth in Red Lion Broadcasting Co. v. FCC.” In this 1969
decision, the Supreme Court held that the Federal Communications Commission (FCC)
did not violate the First Amendment in requiring a radio or television station to give reply
time to people who were the subject of a personal attack or political editorial aired by the
station. In reaching this decision, the Court emphasized that “there are substantially more
5 Logan 1687 (citing Communications Act of 1934 $ 603; NBC v. United States, 319 U. S. 190,215
(1943).)
6 Id. at 216.
7 En Bane Programming Inquiry, 44 F. C. C. 2303,23 12 (1960).
* 47 U. S. C. 312( a)( 7), 315( a) (1994); 47 C. F. R. 73.1941,73.1944 (1996)
947 U. S. C. 315( b) (1994); 47 C. F. R. 73.1942 (1996).
lo. For history of broadcast regulation, see Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach
to Broadcast Regulation, 60 Tex. L. Rev. 207,2 13- 17 (1982).
3
290
individuals who want to broadcast than there are frequencies to allocate,” and “because of
the scarcity of radio frequencies, the Government is permitted to put restraints on
licensees in favor of others whose views should be expressed on this unique medium.“ 12
The scarcity rationale has been criticized for years since, for example, newspaper
publishing enjoys full First Amendment protection. l3 Thus, as Logan contends, the
analytical weaknesses behind Red Lion’s central rationale has led to its attack over the
years by academia, politicians, the courts, and even the FCC led by a Republican
chairman. l4 A number of Justices have indicated that they would like to reexamine the
validity of Red Lion, though never specifically doing s0. l’ The Court, however, declined
to apply the scarcity rationale to the Internet, distinguishing it from the broadcasting
medium and its history of regulation. 16 However, Congress still endorses spectrum
scarcity to justify broadcast regulation. l7
It is in this regulatory framework that Commissioner Furchtgott- Roth questions
” Charles W. Logan, Jr. Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of
Broadcast Regulation, 85 Calif. L. Rev. 1687, 1746 (Dec. 1997), (citing 395 U. S. 367 (1969X)
I2 Id. at 388, 390.
I3 Miami Herald Publishing Co. v. Tomillo, 418 U. S. 241 (1974).
l4 Thomas W. Hazlett, The Rationality of the U. S. Regulation of the Broadcast Spectrum, 33 J. L. & Econ.
133 (1990) (arguing that federal regulatory decisions were designed to generate profits for influential
constituents.); The Dole Goal: “Get Government out of the way,” Broadcasting & Cable, Oct. 14, 1996, at
29 (quoting presidential candidate Bob Dole as saying, “Sure, broadcasters should enjoy the same First
Amendment rights as publishers. I know my opponent doesn’t agree, but that is because he subscribes to
the outdated ‘scarcity principle. ’ Imagine telling broadcasters that they can’t have equal footing with
publishers because there is a scarcity of licenses, even though we all know there are far more TV and radio
stations in any given market than there are newspapers.“); Telecommunications Research & Action Ctr. v.
FCC, 801 F. 2d 501, 508 (D. C. Cir. 1986) (Judge Robert Bork argued that since scarcity is a universal fact
for all economic goods, including newspapers and broadcasting, it can hardly explain regulation in one
context and not another.); Syracuse Peace Council, 2 F. C. C. R. 5043,5052- 58 (1987).
I5 CBS, Inc. v. Democratic Nat’1 Comm., 412 U. S. 94, 154 (1973) (Douglas, J., concurring) (stating that he
would not support the scarcity rationale.); FCC v. League of Women Voters, 468 U. S. 364, 376 n. 11
(1984) (recognizing that the “scarcity” principle has come under criticism but refusing to overturn it and
undo 50 years of FCC regulation without signal from the FCC or Congress.); Turner Broad. Svs., Inc. v.
a, 114 S. Ct. 2445 (1994); Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 116 S. Ct. 2374
(1996).
l6 Reno v. ACLU, 117 S. Ct. 2329,2344- 45 (1997).
I7 S. Rep. No. 227- 101, at lo- 16 (1989) (enacting Children’s Television Act over the Bush administration’s
First Amendment objections.)
4
“. _ I . . . ..-- -.-” * I -. -_.-. .--__-~- -
291
the constitutionality of the FCC’s authority to regulate political discourse.”
Consequently, as Charles W. Logan, Jr. asserts, the Supreme Court will have to address
this unstable “scarcity” and First Amendment legacy the FCC has inherited as the basis
for its regulatory regime.”
Logan suggests that the FCC’s regulatory broadcast regime can survive First
Amendment constitutional scrutiny. He asserts that the Supreme Court’s public forum
doctrine20 provides a basis for treating broadcasting as a limited public forum since
broadcasting waves are public property licensed for use and not ownership by private
entities. Consequently, regulation would be upheld so long as it is reasonable and
viewpoint neutral.
He posits two theories to justify this rationale. Primarily, the First Amendment
enables democratic self- government by providing the means of generating robust and
open debate on public issues. Consequently, the government may play an active role in
to generate and ensure that the public debate is open and robust. For this proposition, he
relies heavily on the works of professors Cass Sunstein2’ and Owen Fiss22. In effect,
I8 FCC 99- 390 at 70- 7 1 (Furchtgott- Roth separate statement of dissent and concurrence).
I9 Charles W. Logan, Jr. Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of
Broadcast Regulation, 85 Calif. L. Rev. 1687, 1746 (Dec. 1997).
*’ Logan gives the following analysis of the pertinent category of public forums applicable to FCC
broadcast regulations: “The second category is designated public forums, i. e., ‘public property which the
State has opened for use by the public as a place for expressive activity. ’ Perrv Educ. Ass’n v. Perrv Local
Educator’s Ass’n, 460 U. S. 37,45 (1983). There are two kinds of designated public forums: limited and
unlimited. A designated public forum of unlimited character is generally open to all comers, such as a
municipal auditorium that a town has permitted the general public to use. Southeastern Promotions, Ltd. v.
Conrad. 420 U. S. 546,555 (1975). A limited designated public forum, by contrast, is “created for a limited
purpose such as use by certain groups,... or for the discussion of certain subjects.” Perrv, 460 U. S. at 46 n. 7
(citing Widmar v. Vincent, 454 U. S. 263 (1981) (student groups) and City of Madison Joint Sch. Dist. v.
Wisconsin Pub. Employment Relations Comm’n. 429 U. S. 167 (1976) (school board business)). . .
Limited public forums receive a lower level of scrutiny: A recent decision by the Court holds that content-
based restrictions on speech in limited public forums are permissible provided they are “reasonable in light
of the purpose served by the forum” and do not ‘discriminate against speech on the basis of its viewpoint. ’
Rosenberger v. Rector & Visitors of the Univ. of Va., I 15 S. Ct. 25 IO, 25 I7 (1995) (quoting Cornelius, 473
U. S. at 804- 06).” 85 Calif. L. Rev. at 170809.
*’ Cass R. Sunstein, Democracy and the Problem of Free Speech 5 (1993); (2d ed. 1995).
292
these authors posit that the First Amendment emphasizes deliberate functions of free
speech as essential to democracy. However, often the forces of majoritarian tyranny and
the market’s indifference to public interest programming23 assert pressures for direct
government intervention to promote the First Amendment political candor and thus
democracy.
The Supreme Court has ratified the importance of broadcasting political discourse
to the preservation of First Amendment democracy. The Supreme Court upheld the
constitutionality of the lowest unit charge for television advertising and reasonable access
to the medium provisions for political candidates. According to the Court, “Section
3 12( a)( 7)... makes a significant contribution to freedom of expression by enhancing the
ability of candidates to present, and the public to receive, information necessary for the
effective operation of the democratic process. 1’24
Secondly, Logan argues that broadcasters receive preferential treatment in being
granted valuable rights to use the regulatory regime that other mediums do not enjoy.
These valuable benefits are bestowed on broadcasters at the exclusion of others in return
‘* Owen M. Fiss, The Irony of Free Speech 2- 3 (1996); Owne M. Fiss, Why the State?, 100 Harv. L. Rev.
781 (1987).
u “These effects can be exacerbated in broadcasting markets, which earn revenue through selling
advertising rather than through subscriber fees. To attract advertisers, a broadcaster places a premium on
programming that generates the largest possible audience and targets preferred demographic groups. The
nature of this market can result in the undersupply of certain types of socially beneficial programming, as
well as a lack of diversity in programming. Government intervention tries to correct these market
imperfections consistent with the First Amendment.” Logan at 1720.
24 Logan 1687 (quoting CBS, Inc. v. FCC, 453 U. S. 367,396 (1981).)
The First Amendment interests of candidates and voters, as well as broadcasters, are implicated by
3 12( a)( 7). We have recognized that “it is of particular importance that candidates have the... opportunity to
make their views known so that the electorate may intelligently evaluate the candidates’ personal qualities
and their positions on vital public issues before choosing among them on election day.” Indeed, “speech
concerning public affairs is... the essence of self- government[.]” The First Amendment “has its fullest and
most urgent application precisely to the conduct of campaigns for political office.”
6
I_ ..- . ~_, ,__ __-_-- -.___ _ -- _.___. .l..-- l-- l--
293
for promoting important social goals in terms of greater access to the medium and
attention to public interest programming2’
Americans rely on television to get their news more than any other source. 26
Consequently, this poses a burden of accountability to the public interest not present to
the same degree in other forms of media. A burden that is far outweighed by the
advantages broadcasters have in their position with the American public and the
government.
Instead of being charged a fee for their use of the spectrum, all current
broadcasters have been awarded their licenses on the condition that they serve the public
interest. 27 This presumptively favors incumbent licensees so long as they comport with
public interest standards .28 While the FCC has moved to an auction and bidding process
for licensing, Congress clarified that the digital television channels incumbent television
broadcasters will be receiving are exempt from the auction authority it has given the FCC
in assigning new broadcast licenses in the future. 29 In addition to the receipt of spectrum,
broadcasters have enjoyed other government- conferred benefits. These include statutory
“must- carry” rights that entitle television broadcasters to carriage on local cable
systems3’
*’ Logan, 85 Cahf. L. Rev. 1687
16 FCC Notice of Proposed Rulemaking, FCC 99- 360,65 FR at 4211; Roper Starch Worldwide, America’s
Watching: Public Attitudes Toward Television (1995) (reporting results of public survey and stating that
“television continues to be far and away Americans’ primary and most credible source for news and
information”).
27 Logan at 1727.
*’ Logan at 1729- 34.
29 See Section 3002 of the Balanced Budget Act of 1997, 143 Cong. Rec. H6029, H6031 (daily ed. July 29,
1997) (codified at 47 U. S. C. A. 309 (j)( 2)( B)).
3o Logan 1687: These must- carry provisions have been upheld by the Supreme Court against First
Amendment attack by the cable industry. See Turner Broad. Sys., Inc. v. FCC, 1 I7 S. Ct. I 174 (1997).
7
294
Newspaper publishers are not the recipients of any of these special governmental
benefits in the allocation of the resources that go into communicating their speech. In
contrast, broadcasters have enjoyed the fruits of a government allocations system that has
granted them the exclusive right to use the broadcast spectrum. And these rights have
proven to be extremely valuable. The National Telecommunications and Information
Administration, of the Department of Commerce, has estimated the marketplace value of
the current television and radio broadcast spectrum at $ 11.5 billion. 31 Furthermore, each
existing television station has been awarded a second 6 MHz channel to use for its digital
transmissions32, with the total value of the spectrum that will be used for digital television
estimated to be between $ 11 to $70 billion. 33
The courts have, in turn, recognized this advantage and upheld regulatory public
obligations. 34 Red Lion also recognized that the preferential treatment broadcasters
receive in being granted their rights to use the spectrum consequently provides an
independent basis for upholding regulations “requiring a licensee to share his frequency
with others and to conduct himself as a proxy or fiduciary with obligations to present
those views and voices which are representative of his community and which would
otherwise, by necessity, be barred from the airwaves. 1’35
The idea that broadcasters should give free air time to candidates in exchange for
the spectrum set- asides is at the forefront of public policy debates in Congress regarding
DTV. The set- aside prompted President Clinton to establish an Advisory Committee to
31 Logan at 1730 citing Nat’1 Telecomm. & Info. Admin., U. S. Dep’t of Comm., U. S. Spectrum
Management Policy: Agenda for the Future, NTIA Special Pub. No. 91- 23 (Feb. 1991).
32 See Fifth Report and Order in MM Docket No. 87- 268, FCC 97- 116, PP 1 l- 12, 17 (released Apr. 2 1,
1997)
33 Logan at 1730.
34 CBS, Inc. FCC, 453 U. S. 367 (1981).
35 Red Lion Broad v. FCC, 395 U. S. 367,389 (1969).
8
_ _ ..-.__ I .-.~.~ ,._-- 1---
295
examine the public interest obligations of television broadcasters. 36 It has also led several
prominent bi- partisan members of the community, including former President Jimmy
Carter and Walter Cronkite, to advocate requiring broadcasters to provide free airtime to
political candidates. 37
Several public interest groups have emerged to address this issue, including the
Civil Rights Forum, the Center for Media Education, and a Task Force on Campaign
Reform chaired by Princeton University professor Larry M. Bartels and endorsed by Paul
Taylor and Walter Cronkite through The Free TV for Straight Talk Coalition and
Alliance for Better campaigns. 38 In effect, these groups have recognized that the United
States, compared to other industrialized nations, is seriously lacking in its effective use of
television as a medium for political discourse. They indicate that several broadcasters are
decreasing the level of political information that is transmitted through television, and
have lukewarm responses to voluntary free air time for candidates.
Conclusion and Suggestions
As indicated, the FCC is constitutionally free to regulate broadcaster’s use of their
licensing advantage to promote public discourse. Furthermore, market mechanisms have
36 Exec. Order No. 13,038,62 Fed. Reg. 12,065 (1997).
37 Alliance for Better Campaigns, www. bettercampaigns. org (endorsing the Vice President’s Commission
suggestion for 5 minute free air- time for campaigners).
In addition, Logan cites Broadcasting & Cable quoted Senator McCain as saying,
I believe that when [broadcasters] receive their licenses for use of extremely valuable spectrum, when they
agree to act in the public interest, part of that obligation might be to provide political candidates with an
opportunity to express their views....[ Broadcasters] do use something that’s owned by the public, just like
the rafter uses the Grand Canyon. I believe the American taxpayer should have the benefit of that
something.
Tough’s the Word for John McCain, Broadcasting & Cable, Mar. 3, 1997, at 19.
38 www. civihightsforum. org/ dtv/; www. bettercampaigns. org.
296
pressured broadcasters to forego free air time and other measures to increase political
information to the public.
While the PIAC suggestions for voluntary efforts by broadcasters to promote
democracy and the specific “five- minute” free soundbites for candidates is a start, the
initiative does not go far enough. As several people in the industry, including Dan
Rather, Walter Goodman, and Thomas Hazlett, have commented, this plan, or any like it
is nothing more than meaningless (and monotonous) fluff that pays only lip service to
democratic intellectual discourse. 39
The FCC should rethink the “automatic” renewal of licensing and the exemption
from the bidding process of incumbent licensees in renewing licensing for DTV
spectrum. Such a policy would foster competition and introduce more, and hopefully
better, news and politics- oriented broadcasting. In addition, the FCC should require that
broadcasters provide free air time a day for at least 30 minutes during prime time,
including use of time for debates, political analysis, etc. Furthermore, as an alternative, a
“broadcast bank” could be created wherein each broadcaster would be required to
“donate” two hours of prime time advertising in each two- year election cycle. Buy- out
plans may also be feasible wherein a broadcaster can instead of airing political
informational programming, provide equivalent monetary contribution to PBS or another
government operated broadcasting system, not unlike the “pro bono” requirements of
many attorneys who similarly are accountable to a higher level of public interest than
other professionals.
3g www. bettercampaigns. org;
Thomas W. Hazlett, “Must Scream TV,” www. reasonmag. com/ 970l/ col. hazlett. html.
10
297
11
298
March 17, 2000 . Mm 2 3 zooo
m
Magalie Roman Salas Secretary
Federal Communications Commission 445 12th Street SW
Washington, DC 20554
RB: Public Interest Obliqations of Television Broadcasters Licensees MM Docket No. 99- 360; FCC 99- 390; 65 Fed. Reg. 4211 (2000)
Dear Secretary Salas:
I am writing to comment on the public interest
requirements the Commission should impose on digital
broadcasters. As a law student and a concerned member of the
public, I have focused my suggestions in the four areas that
need the most protection and reform as we move into the
digital age. Digital television will provide broadcasters
with more programming options which should be used to better
serve the citizenry. Imposing more public service
requirements on digital broadcasters in these areas will
give more Americans the opportunity to participate and
prosper in the digital age. Therefore, I hope the
Commission will take the incentive to impose more public
interest requirements in the areas of education, political
participation, community programs and services, and
broadcasting safeguards.
Education
I believe digital technology should be used to serve
the educational needs of both adults and children. Digital
television broadcasters should be required to deliver
299
Magalie Roman Salas March 17, 2000
Page 2
innovative and interactive programs and services from
traditional educational institutions. These telecast
requirements will enhance the work of schools, libraries,
training centers, and distance education. ' I believe the
Federal Communications Commission should focus educational
regulations for digital broadcasters in three areas:
children's programs, lifelong learning, and access to
technology.
Children's Program=
In my opinion, broadcasters should be required to go
far beyond the minimum of three hours per week of education
programming now required under the 1990 Children's
Television Act. Stations should provide a minimum of one
hour per day of programming designed to serve children of
all ages, including news and public affairs programming. I
also believe that the Commission should continue to impose
the six requirements defined in the 1996 rules for
children's programming [( l) have a significant purpose of
educating children 16 and under; (2) have a clearly stated,
written educational objective; (3) have a target age group
as the intended audience; (4) be at least 30 minutes in
length; (5) b e regularly scheduled; and (6) be broadcast
300
Magalie Roman Salas March 17, 2000
Page 3
between the hours of 7: 00 AM and 1O: OO PM]. ' Moreover, I
agree with the People for Better TV that digital
broadcasters should be limited to no more than four
commercials per hour during children's programs. 3 These
requirements will be very beneficial to children in rural
areas who would not otherwise receive any educational
programs outside of school. Furthermore, the news and
public affairs programming of these programs will help
educate all children about the world them.
Lifelong Learninq:
Broadcasters should also provide access to continuing
adult education, college courses, and other educational
opportunities for the public. This type of public interest
programming will give individuals both the convenience and
freedom to enrichment their educational capabilities.
Access to Technoloqy:
As part of their community- service requirement, I
believe broadcasters should provide schools and other
nonprofit institutions with support for Internet access and
!Report to the Federal Communications Commission, Advisory Committee on the Public Interest Obligations of the Digital
Television Broadcasters (December 29, 1998). ' A Field Guide to the Children's Television Act (visited
March 13, 2000) ,h~,~~~~~~~~~.~~ me. or~~ ctatcolI'fs- uide. f~ tml. ' Letter from Albert Gore, Jr., Vice President, to William
Kennard, Chairman, Federal Communications Commission (October 20, 1999).
301
Magalie Roman Salas March 17, 2000
Page 4
other digital TV services. Being from a rural area, I have
seen first- hand the financial difficulties some schools have
providing technological innovations for students. Moreover,
I endorse requiring digital broadcasters to support
community technology centers, which provide essential access
and training to those who might otherwise be excluded from
full participation in the digital age. ' Both school
Internet and community technological support requirements
will expand the facilities' educational capabilities that in
turn will improve the opportunities available for students.
Particivation Political
Current television practices have contributed
significantly to the deterioration of the political process.
The high cost of TV advertising time has required political
candidates to raise larger and larger campaign funds which
has made these candidates vulnerable to increasing special-
interest influence. At a time when voter participation is
at an all- time low, the television industry should be called
upon to make a significant contribution to our democracy. 5
" Public Interest Goals for Digital Television: An
Opportunity to Reinvent TV (visited on March 8, 2000) / /s~~~~.(- me.:~~ rg/ pubin, ht_ r~~. http:
'rd.
302
Magalie Roman Salas March 17, 2000
-.- !- 'a '2 e 3
Access to Political Information:
Digital technology provides new opportunities for
broadcasters to connect views with a broad range of civic
information resources, from background material on
candidates and campaign platforms to legislative proposals,
referenda, and other nonpartisan material. I support
requiring local stations to work with state and community
governments and agencies to develop local and state versions
of C- SPAN and other political educational stations. These
stations will aid the public in expanding their knowledge of
government as well as serve as a watchdog on elected
officials by keeping a regular watch on their governmental
activities.
Free Air Time:
At a minimum, television broadcasters should be
required to provide free airtime for political candidates,
federal, state, and local. I join the Gore Commission and
the Paxson Communications Corporation's proposal that
digital stations be required to provide 5 minutes per night,
during prime- time, for candidate- centered discourse in the
30 days before an election. ' I believe the stations should
6 Report to the Federal Communications Commission, Advisory Committee on the Public Interest Obliga- tions of the Digital
Television Broadcasters (December 29, 1998); Letter from Lowell Paxson, Chairman, Paxson Communications Corporation,
-
303
Magalie Roman Salas March 17, 2000
Page 6
rotate which races are represented during this free airtime
and should strive to give equal time to federal, state, and
local candidates. This air time will give voters the
opportunity to make more informed choices and will give
exposure to less known, but otherwise qualified candidates. '
Communitv Procrrams and Services
Television stations are licensed to serve local
communities. But except for local news, programming
designed to serve communities has all but disappeared from
broadcast television. ' Digital technology makes possible
new levels of community programs and services. With each
station programming 5 to 6 additional new channels, the
opportunity for serving community needs expands
significantly. '
Public affairs:-
I support requiring digital stations to use some of
their new channel capacity to provide public affairs
programs that address issues and problems facing their
--~ -- --- _I_.--_--.--~..__ .----_~-..- ._-_,._.__ _-._-._-.---- .--- __~----
to William Kennard, Chairman, Federal Communications Commissions (February 11, 2000).
Public Interest Goals for Digital Television: An
Opportunity to Reinvent TV (visited on March 8, 2000) http: / /'~~/~~:. c~~~~?. orslpubi~ l,. h'r! n~..
--. ' Id.
' Digital Television: The Site (last modified January 24, 2 000 ) i&& p: / ;- fi%~~~ 2w_ lfl 4; ~~. t. alt~ ncvisiori. cai~~.
L ..--- -.__---
---
304
Magalie Roman Salas March 17, 2000
Page 7
communities. Digital broadcasters should also telecast
interactive forums that make possible participation
from community members to address matters normally
overlooked by the local news. This participation will
enable decisions formulated by more members of the effective
public. Moreover, community forums should promote local
leaders who can better represent these areas in higher
political arenas.
Public Accountability;
I believe digital broadcasters should place online full
documentation of their plans to serve the public interest.
I do not see this requirement as an added burden to
broadcasters since many local stations now maintain Internet
websites where this public interest information can easily
be updated. Moreover, I support the Gore Commission's
recommendation that digital broadcasters work with local
newspapers and/ or local program guides to enable viewers to
identify public interest broadcasts." These disclosure
requirements will supply individuals with the information to
fully benefit from digital technology programming.
" Report to the Federal Communications Commission, Advisory Committee on the Public Interest Obligations of the Digital
Television Broadcasters (December 29, 1998).
.I .--. ,.... - -,._ “.l ---.-_.-. _- l_ l._“^ l-_, l, l_
305
Magalie Roman Salas March 17, 2000
Page 8
Broadcastinq Safesuards
The expansion of channels and the introduction of
interactivity will bring new forms of programming and
advertising. Interactive marketing will be embedded within
programming, further blurring the lines between advertising
and editorial content. Personalized marketing directed at
individual children could seriously threaten the privacy of
both children and their families.
V- Chip:
Broadcasters must be required to ensure that the V- chip
and the new TV ratings system, designed to protect children
from inappropriate content, work effectively with digital
programming. The Commission should ensure that the ratings
system can take advantage of digital technologies to help
parents and others block unwanted programming. These
requirements are necessary in order to prevent a backward
advance in protecting our children from viewing improper
programming.
Privacy Protections:
Digital television will enable broadcasters to acquire
vast information about consumer's personal choices in many
areas. The Commission must develop rules to protect the
privacy of viewers from inappropriate and manipulative data
collection by digital broadcasters. These regulations also
need to ban the sale of information about consumer's
306
Magalie Roman Salas March 17, 2000
Page 9
personal program and product choices. The Commission must
also develop new safeguards to protect the public from
manipulative interactive advertising practices." These
advertising regulations are necessary to prevent consumers
from falling prey to targeted programming and commercials by
digital broadcasters.
Conclusiop
As my suggestions reveal, I believe that the Federal
Communications Commission should impose specific public
interest obligations on digital television broadcasters.
These requirements in education, political participation,
community programs and services, and broadcasting safeguards
will enable average Americans to benefit from digital
television. I feel giving Americans the opportunity to take
advantage of digital technology broadcasting should be the
overall goal of the Federal Communications Commission.
Sincerely,
Glenda H. Pipkin
cc: Professor Glenn H. Reynolds
" Letter from Mark Lloyd, Counsel, People for Better TV, to William Kennard, Chairman, Federal Communications Commission
(November 16, 1999).
- . . . -_.. .“.. .- .-.-.. “.. l_..“ l- l--~ l-”
307
To: Magalie Roman Salas, Secretary- FCC
From: Dale E. Burdette
cc: Professor Glenn H. Reynolds
Date: 15 March 2000
Re: Comments on Debate over Minimum Public Interest Obligations
Dear Secretary Salas,
I am responding to the FCC’s request for comments on how broadcasters can best
serve the public interest as they transition to digital transmission technology, 47 CFR Part
73 (January 26, 2000). Although I am a graduate student, I find time to watch a wide
array of television programs. Since I believe my views will reflect similarly situated
individuals’, I am writing in opposition of proposals to elevate the minimum public
interest obligations of broadcasters standard.
Introduction
I agree with both the Advisory Committee and People for Better TV on the notion
that the advent of the Digital Era requires a review of the existing public interest
obligations and their applicability to digital television. If there is going to be a minimum
public interest standard, both broadcasters and the general public need to clearly
understand the standard. Since content- neutral speech regulations are void on their face
if explicitly vague, the standard must reasonable notice of what is required and what is
prohibited. ’
Economically, since competition in the marketplace produces the best results for
society as a whole, in the absence of government intervention, I do not believe the
’ Reno v. ACLU, 521 U. S. 844.
308
standard should be elevated. Assuming television- programming consumers must pay for
their services, I believe the telecommunications industry should be deregulated, possibly
to the point of removing any minimum public interest requirements. Only by
deregulation will the public receive a free flow of information at the minimum possible
cost. To date, two main goals of regulating these media are not being met: federal
oversight is not fostering the commercial development of the industry and falls short of
serving society’s informational needs. What is in society’s best interest is providing them
with as much information as is feasible, in the most accessible format, because
information is the foundation of learning and education. Once the citizens of our nation
are able to tap into the vast amount of information, now possible via digital television,
they will be empowered with a choice of what they desire to view and what they do not.
At this transitional point in the telecommunications field, digital television has the
capabilities to perform many valuable services, and Congress has the power to allow
society to reap the full benefits of the digital arrival.
The Impact of Television on Society
Does television shape society or does society shape television? While many
believe that television programming has a significant impact on society, the opposite also
holds true. Television must be responsive to the needs and desires of society or else it is
unappealing, and thus, unsuccessful. Unappealing programming is not in great public
demand. If programming does not flourish, it fails to attract the much- needed revenue
that keeps broadcasters in business and on society’s TV sets.
With the new business opportunities provided by digital television, there exist
potentially positive effects on broadcaster’s earnings. In turn, these benefits can be
309
passed on to viewers, not only by way of new services being provided, but also by
decreasing costs to the consumer. Additionally, any new service digital TV provides can
supplement society’s wants (for example, by data casting).
Since broadcasters are utilizing the public airwaves, they do have a special role in
serving the public. They should be required, if anything, to respond to what their viewers
want to see and what they need to watch. Further, programs should be convenient to
access, and should meet particular consumers’ specific needs. Certain programming may
be more successful in one geographic location and not so prosperous in others. For
instance, rural programming may significantly differ from their urban counterparts.
Likewise, national broadcasters should be required to respond to the national consensus
and local broadcasters should fulfill community specific needs and desires. Therefore, if
any burden is to be placed on broadcasters, it should be one of responsiveness. In a
competitive market, this obligation will necessarily exist, and government intervention
may do more harm than good.
More Specific Regulation is Restraint
I reject the notion that society is best served by restricting its ability to receive
information. In regulating the type of information conveyed over the public airwaves by
digital TV technology, certain information will not reach society through this medium. If
individual consumers do not receive cable, they may never receive the benefit derived
from areas of restricted knowledge. Instead, society should profit from technological
advances the free flow of information made available by digital TV, especially from
those advances which allow broadcasters to experience gain by using public airwaves.
Programming should go unrestricted, or at the very least, remain at current restriction
310
levels (after all, they are continuing to offer the same services as before digital TV. Part
of informing is responding to what people want to know.
Even if more specific public interest standards are applied, as proposed, they may
be avoided. According to the Advisory Committee’s proposal, broadcasters would be
allowed to pay a fee in lieu of fulfilling the public interest requirement.” Likewise, the
fee could be circumvented, absent specific guidelines to the contrary, by the multicasting
and meeting their public interest requirement on one or a select few of their channel
streams. If standards are placed on all of a broadcaster’s streams, services or
programming that a particular community desires may result in restricted viewing. At the
same time, broadcasting consumers may receive services that they do not want or even
watch. This just appears to be a waste of the resources available with the coming of
digital TV.
One chief goal of federal regulation in telecommunications is to keep the public
informed. To this end, society, as a whole and within its geographical communities,
should be allowed to watch what they want and need.
What Should Society Be Allowed to Watch
Consumers should be allowed to receive the signals they desire, and the ability to
“black- out” programming found undesirable. This decision should be made at the
household level. Several factors may shape the choices desired in determining the
combination of channels the consumer will receive. One such factor is economic in
nature, and rests upon a cost- benefit analysis. For each programming choice, there exists
a certain dollar amount, at which purchasing the channel, the consumer will derive a
’ “President’s Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters
Report to Vice- President Gore” . Dec. 18, 1998.
311
benefit equal to that value. In determining what the value is worth to the individual
consumer, what is needed and/ or desired factors in. These needs and desires are weighed
against the cost in determining the programming’s worth to the viewer. Finally, another
major factor that may be taken into consideration is the broadcast’s moral stature. If a
certain program is particularly offensive to a household, it should be able to block the
signal. If it is of a nature the consumer desires (and possibly if it fits the economically),
they may choose to allow the signal to enter the home or purchase its access, whatever
the case may be. If the particular programming is desirable only to a small group, a
premium price may be necessary. Everyone should not be required to receive the signal,
or purchase it, if they find it unappealing. If this programming is of the character that
requires a charge, this would only help to defray costs for those who want the signal.
What Interest Is Being Promoted?
Besides the goals of promoting commercial development within the industry and
ensuring information reaches the general public, what other interests does federal
oversight concern. 3 Assuming these goals are not being met adequately, there must be
something else we’re trying to protect. Whenever obscenity is in issue, regulation has
undertones of morality. If the public interest lies in protecting society against any moral
wrongs, that reasoning will not suffice. People in this society hold the power,
government is for the people. Free thought in society is not at government’s disposal.
What is morally correct? If morality can only be supported by religious views,
the separation of church and state prohibits government regulation. Broadcasting is
afforded First Amendment speech protection, unless it is obscene. And this is obscene to
whom? The individual viewer should be able to decide: on a personal level.
312
If individuals act out some a legally unacceptable wrong, of course they should be
punished. A fellow high school student of mine built pipe bombs, was caught by the
police, and, in court, blamed it on the TV series McGyver. The point is, some people
may not be able to handle it. Some people may not be able to cope with competition, but
it should not be eliminated from society. Competition can prove very beneficial within
certain spheres of conduct. We should not deprive those in society who can learn and
benefit from particular information. The same holds true in television programming.
Congress should not deprive certain programs of air- time when these would be beneficial
to certain segments of our society, simply because some consumers are unable to
understand it properly.
If viewers have an interest in their communities, their desires will be reflected in
television coverage (as long as broadcasters know what people want to see). Just as
people have a right to speak, they have a right to not speak. Similarly, these same people
have the right to vote or abstain from doing so. If the interest in political broadcasting is
significant, it should be reflected on society’s screens. Further, there may be certain
geographical locations where children’s programming is more or less appropriate than in
other areas. Whether or not these areas exist is unimportant, as long as people are able to
tailor programming to meet their specific wants and requirements.
Marketplace Incentives
If the market is allowed to operate without government interference,
programming must be responsive to community needs. If broadcasters are unresponsive
to programming desires, they will be forced out of the industry for failure to produce
revenues. People will not be watching their programs if it is not what they want to watch.
313
Adam Smith, often cited as the founder of economics, developed much of the
theory about markets that we regard as standard today. In his main work, know as “The
Wealth of Nations”, Smith argued that market forces ensure the production of the right
goods and services, because producers would want to make profits by providing them.
Without government intervention, competition would increase the public well- being by
providing goods and services suitable to the public. With producers attempting to outsell
each other, prices would be suppressed to their lowest possible levels, just enough to
allow a minimal profit. If competition is insufficient, this will attract more entry into the
industry by producers attempting to get these profits, thus bringing prices down. The
only requirements that must be met under this economic model are (1) competition, and
(2) the absence of government intervention. 3
When government intervenes, they create barriers to entry of the marketplace.
With fewer firms in an industry, competition is stifled to some degree. To get the full
effects of Smith’s model, perfect competition must be present. Perfect competition is not
a reality, but the effectiveness of the theory remains intact. The more commerce is
regulated, the more competition will suffer, and also the benefits that are derived from a
competitive market place. While Congress is attempting to lower the barriers of entry
into the telecommunications industry on one hand, they turn around negate their efforts.
With this in mind, the public interest standard, even in its current state, acts as a barrier to
entry because it is putting its hand into a competitive market that will operate without
assistance. Not only should Congress refrain from making the standard more specific, it
should lessen the bar if it can find a way.
3 www. bizednet. bris. ac. uWvirtual/ economy
314
How Do Broadcasters Know What People Want
One way is to ask them. Not only would this be inefficient, due to the amount of
time and resources it would consume, it may also lack something else: accuracy.
Consumers may not be as candid if they are asked in person, or if their name is in
someway attached to their comments. They may feel compelled to answer in a certain
manner, similar to peer pressure.
Another way, which is currently in use, is the voluntary participation, ratings
system. Upon a person’s consent, a box is hooked up to their television set, and a ratings
arbitrator receives information concerning what the household watched over a specified
period of time. The problem with this system of ratings is that people, who know the box
is there, may not watch their usual programming. Additionally, since only a random
sample of society is being “tested”, we do not get an accurate gauge of what specific
household’s desire to watch.
I propose an alternate regime. Instead of receiving every signal that is on the
airwaves, each household should have the ability to block undesirable signals. This way,
each individual household can determine what comes onto their TV screen. If this is not
economically or technologically feasible, I propose in the alternative, a system that
monitors every single household. When the TV is turned on, a signal is transmitted to a
remote transmission collection device (mechanical, not human), when data concerning
the type of programming viewed and time spent on the particular signal is tabulated.
Only the results, no individual names (so as to protect any privacy interest that may be
involved) are then sent to the broadcaster. After all the results are combined for a given
315
period, broadcasters would know which types of programming are most suitable for a
particular community.
Conclusion
The public interest can only be served when people are given the option to
explore their own discretion. People must be empowered with the ability to decide what
to watch and where they watch it. Consumers know what they want, they do not need
government deciding this for them. Congress has the power to empower people with a
wealth of knowledge. Until people are fully informed, it will remain difficult for them to
make educated decisions. Educated decisions not only concerning choice of TV shows,
but in other aspects of life as well. Congress should not elevate the public interest
standard by making it more specific. Instead, with the era of digital TV upon us, and
more technological advances on the horizon, they should utilize the momentous
opportunity to, itself, serve the public interest and deregulate TV.
Respectfully submitted,
Dale E. Burdette
.~ ,._...._ __ _ . ” _ .- I__^___. ., . -.“..---- ..-_ l. l- --I ~. I~_-~
316
To:
From:
cc:
Date:
Re:
Magalie Roman Salas, Secretary- FCC
Carol Guthrie
Professor Glenn H. Reynolds
March 17, 2000
Comments on Public Interest Obligations of Television Broadcast Licensees
Dear Secretary Salas,
I am writing in response to the FCC’s request for public comments “on how broadcast
licensees can best serve the public interest as they transition to digital transmission
technology.” (MM Docket No. 99- 360, FCC 99- 390). My comments will focus on
suggestions for strengthening commercial broadcaster’s public interest obligations in the areas
of education and community outreach. I have taught history at the college level for the past
fifteen years and have witnessed first hand the ways in which advances in technology and
communications have transformed teaching and learning. As an educator and third- year law
student, I know that educational
accommodate those changes and
century.
strategies must continue to be redesigned in order to
prepare American students for life in the digital 21st
Specifically, I endorse several of the suggestions proposed by the Advisory Committee
on Public Interest Obligations of Digital Television Broadcasters, as well as those of other
commentators and educators. My comments will address three areas: 1) suggestions for
strengthening public broadcasting, 2) the benefits of creating a public, noncommercial
1
- .- ^.-. ..-_ .- ” .,, . -. ._“. .--__- ._._ _ ,. _____-_ - _-._-. ~* -..--
317
educational analog channel, and 3) the need for reaffirming and strengthening the public
interest requirement on commercial broadcasters’ children’s programming.
BackPround
Congress granted the broadcast industry a significant benefit when it gave current
broadcasters free access to the digital broadband. As the Center for Media Education
executive director, Jeffrey Chester, has noted this grant was the “equivalent of free
beachfront property on the Information Superhighway. “I I acknowledge that broadcasters
will have to expend millions of dollars to make the shift from analog to digital, but there is
no reason that broadcast networks could not compensate the American public in some small
way for this grant. By requiring broadcasters to contribute to advancing educational and
community interests, Congress and the FCC would not be treading on new ground. In the
1780’s, the Northwest Ordinances required that proceeds from one- sixteenth of every
township sold had to be used to build a public school and hire a teacher. In the 1860’s, the
Morrill Act provided that a percentage of every plot of public land sold be used to establish
land grant colleges. Unlike these two examples, broadcasters’ access to 21st century “public
land” (i. e. the airwaves) was acquired for free. Thus, it seems reasonable for the public to
realize some greater benefit for this grant, and what better way to serve the public trust than
by having broadcasters contribute in some way to improving education and community
outreach.
‘www. cme. org/ press/ 991215pr. html
2
__- .I I . .“.I -. . .-._. .“)___. --.- ___ I .--- - -~-.. - -. _,_, ““__ ,._,_ l,. ..__. -.“------I .^ -
I ,“_
318
$trenPthenine Public Broadcasting
As the Advisory Committee on Public Interest Obligations of Digital Television
Broadcasters has proposed, an effective way to strengthen education would be to assure the
ongoing efforts of public broadcast networks to provide commercial- free educational and
informational programming. I agree with the Advisory Committee that a trust fund should be
established to help offset the costs of public television. The proposed two percent fee on the
sale of broadcast and/ or telecommunications properties and a two percent fee on broadcaster’s
gross revenues would assure that public television broadcasters have adequate resources to
continue their current efforts at providing free, over- the- air quality programming.
Establishing a trust fund would also make funds available for public broadcasters as they
transition into digital programming. Contributing to such a trust fund seems to me a small
price to pay for the enormous benefit the American public has bestowed on commercial
broadcasters for their free access to the digital airwaves.
I also believe that public broadcasters should be allowed to keep control over their
analog channel in addition to gaining access to a local six megahertz digital broadband.
Whereas commercial broadcasters will be required to return their analog channel for some
future sell- off, public broadcasters could continue using their analog channel. Alternatively,
local analog channels could be turned over to local, noncommercial broadcasters who could
use that broadband for community outreach, such as providing free air time to local political
candidates and airing locally- produced educational and instructional programming. Ideally,
public broadcasters, local educators, and civc and political leaders could join together to
transform the analog channel into an integrated community service network. In any event,
3
319
the local public analog channel should not be auctioned off, but should continue to be
available free to the community.
Another mechanism for strengthening public broadcasting would be to allow public
broadcasters to lease a small portion of their digital band for ancillary services, such as
paging. This would provide a steady stream of income to local public stations, thereby
helping them to offset the costs of transitioning to digital and developing local educational,
instructional, and community programming.
Creating a New Noncommercial. Educational Channel
I agree with the Advisory Committee’s recommendation that one six megahertz analog
channel be reserved in each viewing area for the establishment of a noncommercial
educational channel. As the Committee and many other supporters of this proposal have
suggested, an educational channel could be used in a number of innovative ways to further
advance the public’s need for continued education, instruction, and training.
Local school systems, community colleges, and universities could assume control of
this channel, perhaps in conjunction with local public broadcasters. Educational grants could
be established to help fund and run the channels. The programming possibilities are endless.
As an educator who has taught at the community college level for ten years, I know that
video courses (as well as modem/ internet courses) are supplanting the traditional classroom.
By having access to a public analog channel, colleges and universities could expand their
video course offerings and make them available to students have been hampered in taking
video courses because they do not own video cassette recorders. Furthermore, traditional
classroom teachers could develop innovative ways to incorporate local analog programming
4
_. . . . ,.._ _.. -. . ,-_---^_( r --
-.
320
into their courses-- perhaps even having a class develop an educational or instructional
television program.
In fact, this area seems to me to be a fruitful way to utilize an educational channel.
Students at all levels of the educational process, preschool, elementary, secondary, and post-
secondary, could gain hands- own experience in broadcasting by working at and with local
educational channels. Students could learn to operate broadcast equipment, thereby helping
transform them into more technologically savvy citizens. Students could write and produce
programs on subjects ranging from art to zoology as a class project. Students could even
learn about the financial side of broadcasting by leaning how to budget and manage
resources.
Aside from benefitting students, local educational channels could also serve the wider
public by providing instructional and educational programming that would foster lifelong
learning. The digital information revolution is a fact of 21st century life and Americans must
be prepared to meet the daily changes that technological innovation brings. Local educational
channels could provide instructional programming designed to inform viewers of all ages
about ongoing advances in computer and Internet technology. Private businesses would likely
donate money to local educational channels which would agree to offer programming on such
topics as computer literacy. What better way for a small business owner to upgrade the skills
of his workforce than by having them turn on the local educational channel and watch a
program about the latest updates to Windows?
I do acknowledge that copyright issues could possibly hamper the development of
programming on public educational channels. For example, to what extent would Mr.
5
321
Smith’s 11th grade American history class have property rights in its program on the life and
times of Abraham Lincoln? Conversely, what kind of copyright problems would Mr. Smith’s
1 lth grade class have in using text and pictures from in its Lincoln saga? I do, however,
believe that current copyright laws provide a solution through the educational- use exceptions.
As the Advisory Committee aptly recognizes, funding for educational channels must
be made available. I believe that local and regional business would be one source of funding,
particularly if they could be made to see the benefits such channels could offer them in
educating and training their workforce. Also, the Department of Education could provide
grants to local educational channels. Finally, I agree with the Advisory Committee that the
President and Congress should reconsider the decision to direct revenues from the auction of
the analog spectrum and fees from ancillary and supplementary services to the General
Treasury. Instead, those monies should be used to enhance the public interest in
broadcasting, especially in helping to nurture and grow public educational channels.
Strengtheninp the Public Interest Reauirement
on Commercial Broadcr& ers’ Children’s Pronramming
Aside from the aforementioned proposals for enhancing local educational, community
outreach, and instructional opportunities, I also believe that the general public interest
requirement currently applied to analog broadcasters must be reaffirmed, if not strengthened,
for digital broadcasters. As Newton Minnow and Henry Geller have noted, not to mention
the United States Supreme Court, the airwaves are owned by the public and granted to
commercial broadcasters, free of charge, with the understanding that those broadcasters will
6
- I_ “,, .__.. ., _. -.-. --“... - _..-- .I._,.. I ~, I.--. ~-
322
serve the public trust. 2 I agree with the Advisory Committee that commercial broadcasters
must be encouraged to use the new digital technology in ways that would promote diversity,
ensure open political discourse, and provide access to the disabled.
Specifically, I believe that commercial broadcasters should be called upon to make a
renewed commitment to developing quality children’s programming. Under the Children’s
Television Act of 1990, commercial broadcasters are required to provide three hours of
children’s programming per week. Obviously, that requirement should continue to apply to
the digital airwaves. However, the FCC should more closely scrutinize the content of
children’s programming to assure that programs such as CBS’s “Secrets of the Crypt- Keeper’s
Haunted House” and “G. I. Joe” would not alone fulfill a broadcaster’s three- hour
requirement.
I do not mean to demean such programs. I have a five- year- old son who (much to my
chagrin) has become a “Pokemon” fanatic. I even recognize the possible educational benefits
such a show offers (e. g. learning to catalogue large amounts of information about various
Pokemon characters). However, I also recognize that commercial broadcasters are exploiting
my son in order to sell products. That is the nature of the commercial broadcasting game
and I accept it. But in return commercial broadcasters should be encouraged to improve the
educational and informational quality of children’s programming, and the FCC can play a
role by drafting guidelines which provide more concrete descriptions of what constitutes
educational and informational children’s programming.
“s Geller, “Public Interest Regulation in the Digital TV Era, 16 Cardoza Arts &
Entertainment L. J. 34 1, and Statement of Newton N. Minnow at www. benton. org/ PIAC/ minowltr. html.
7
_-. . ^_ - ^_.. -,. _^ ._ ._ ,._- -. .- .._ ~...-.-..~-- I-. ._.--_- ---
323
I acknowledge the First Amendment concerns commercial broadcasters raise when
confronted with more precise content regulations. However, I disagree with the National
Association of Broadcasters argument that creating more clearly defined guidelines would
violate the First Amendment. Broadcasters cannot have it both ways: they can’t get free
access to the public airwaves while skirting their public interest obligations. The Supreme
Court has concluded that the government can regulate television content if the regulation is
reasonably fashioned in such a way to serve the public interest. 3 I firmly believe the FCC
can fashion reasonable guidelines that would result in commercial broadcasters creating
programming which would more fully realize the goals of the Children’s Television Act’s
three hour a week mandate.
Conclusia
I agree with the Advisory Committee that the transition to commercial digital
broadcasting must bring with it a renewed and strengthened commitment to the public interest
requirement. As a parent, educator, and student I believe that commercial broadcasters must
be called upon to make better use of their free access to the digital airwaves, particularly to
advance the ever more complex educational needs of American society. I am not alone, for a
majority of the American public also seems to widely support “asking television broadcasters
to do more in return for the free use of public airwaves.“ 4 As a survey conducted for the
Benton Foundation found, 79% of those polled supported a proposal requiring broadcasters to
3s Geller at 355.
4A Report on Findings From Focus Groups and a National Survey Conducted for the Benton Foundation, Lake Snell Perry & Associates, www. benton. org/ Television/ edtv. html.
8
324
contribute 5 % of their profits into a Public Broadcasting Fund, while 84 % of respondents
favor extending the three hour children’s educational programming requirement (with 55%
strongly favoring). Given the widespread support for improving education and strengthening
the public interest requirements of commercial broadcasters, I believe that the FCC and
Congress should adopt the foregoing proposals, along with others made by the Advisory
Committee.
Sincerely,
Carol Guthrie
9
^_ _ . ..- .._-_. ____” _I- _..- II ~- _
325
. MAR 2 3 aJu( j
To: Magalie Roman Salas, Secretary- Federal Communications Co =mL
From: John T. Dixon
cc: Professor Glenn H. Reynolds
Date: 3/ 17/ 00
Re: Comments on Public Interest Obligations and the Transition to Digital Television
Dear Secretary Salas,
I am responding to the FCC’s request for public comments, 65 Fed. Reg. 4211,
(January 29, 2000), and will direct my comments to the FCC’s identified goal of
enhancing political discourse. As a law student who contemplates serving his local
government in the future, I have serious concern for the lack of political participation by
the public at the local, state and national levels. In reassessing the public interest
obligations of broadcasters within the setting of the digital transition, the FCC has an
excellent opportunity to further its encouragement of political discourse through
heightened political coverage requirements. The FCC should require broadcasters to
expand their coverage of local, state, and national elections as well as require innovation
in the coverage of political debates regarding central issues which figure prominently in
political discourse. By doing so, the FCC would promote interest in and scrutiny of
politicians and the issues which they control.
In its NOI, the FCC quoted the Supreme Court as stating that “deliberation on the
positions and qualifications of candidates is integral to our system of government.” 65
Fed. Reg. at 4215. The Court’s assertion implies that the election process through which
government officials gain their positions is patently deficient if a significant part of the
1
326
electorate fails to engage in such deliberation. Sadly, and not surprisingly, such is
presently the case. Voter turnout rates for national elections are at a low point in the
nation’s history. In addition, almost two- thirds of Americans do not trust the
government, and almost three- quarters of Americans state that politics is too complicated.
(National Election Studies, www. umich. edu). These statistics suggest that most Americans
are not participating in the political process of choosing leaders, and what is worse, are
not engaged by the political issues that surround elections.
As the University of Southern California Annenberg School for Communication
study shows, local news coverage of the California gubernatorial election constitutes less
than 1% of local news in that state. Additionally, evidence indicates that 25% of stations
provide no local news or coverage of public affairs.( 65 Fed. Reg. at 4216). These
numbers partially explain the political malaise that plagues the public. Certainly, stations
give local and state public affairs news little coverage because few people watch the
programming. The FCC states, however, that public service remains a “touchstone”
among the goals of broadcast communication and that broadcasters assume a significant
duty to serve the public interest when they take control of airwaves. The situation is ripe
for the FCC to place the statutory burden squarely on broadcasters to foster attention to
the political process.
The FCC should begin by requiring more time for political coverage. The
Advisory Committee’s proposal of five minute coverage each night between 5: 00 p. m.
and 11: 35 p. m. for “candidate centered discourse” during the thirty days before an
election seems like a good start. Former FCC General Counsel Henry Geller’s proposal,
however, looks much better in that it contemplates longer spots, 15 to 20 minutes, for
2
-. . -^-. --__.~-_-.” - .-------.- _ .-____---
327
candidate speeches and response to issues each night during the month before an election.
In order for expanded coverage of elections and issue debate to effect increased political
discourse, the coverage must take the form (that is, more time) through which members
of the media can force politicians to answer specific questions directly. With additional
time on a daily basis, media personnel will have the opportunity, and should have an
FCC- imposed duty, to elicit answers from politicians that at least approach a clearly
discernible meaning. Now, the media fosters “sound- bite” responses from politicians to
the degree that their formulation has moved from the repetition of a fortuitously phrased
quip to an art form the cultivation of which dominates a large part of a candidate’s
election strategy. Many people, myself included, do not tune in to a candidate’s message
when that message is so short so as not really to say anything.
Certainly, the media, simply by throwing more time at elections, will not improve
the quality of political discourse as it is practiced by shrewd politicians. Further, many
contradictions are documented on Sunday morning political talk shows and of course the
daily newspaper. But as the FCC notes, television remains the most dominate medium
through which people and especially young people get their information. I once watched
Tim Russert ask White House Chief of Staff John Podesta if President Clinton accepted
that his fine imposed by a federal district court judge was a correct decision. Podesta
responded repeatedly that President Clinton would pay the fine and was happy that the
matter was over. Russert asked him whether Clinton thought that he should have been
fined by the judge or whether the judge made a mistake. Podesta flatly refused to
endorse either conclusion even though both are mutually exclusive and one or the other
necessarily follows from a contemplation of the efficacy of the judge’s decision. These
328
types of exchanges frustrate onlookers and encourage them not to tune next week.
Russert can only do so much in 30 minutes a week, especially in the setting of a polite
discussion between himself and a high ranking official in the President’s cabinet.
Consequently, the setting of political coverage must change in conjunction with
increased time requirements. That change should center on more requirements for debate
coverage and the expanded use of forums for politicians even without the setting of an
impending election. Live debate fosters candid discourse- the necessity for increased
attention to politics. The series of debates during the presidential primaries ranked
around 150th in the Nielsen ratings in January. (“ Debates Little- Seen, but Influential,”
Richard L. Berke, January 19, 2000, www. nytimes. com). Nevertheless, the debates spawned
dramatically increased awareness about the election and the campaigns. The Harvard
University poll found that twice as many Americans had heard or seen something about
the campaigns compared to the week before the first round of debates.( Berke.
“Debates”). More importantly, the debates forced candidates both to bring substance to
their ideas and principles and to face the consequences. For instance, on January 5th,
Vice- President Gore answered a question regarding gays in the military during a debate
by asserting that he “would insist before appointing anybody to the Joint Chiefs of Staff,
that that individual support [his] policy[ allowing gays to serve openly], and yes, [he]
would make that a requirement.“( Berke. “Debates”) Two days later, Vice- President Gore
admitted that he really would not implement that requirement in an appointment to the
Joint Chiefs of Staff. (Berke. “Debates”). The debate created a situation in which Vice-
President Gore carried his espoused ideas to a logical conclusion and then was given an
opportunity to maintain his position or admit a lack of credibility. Although the record of
4
329
Gore’s flip- flop remains, how much more powerful would it have been if the frequency
of debates and political coverage forced Gore to revisit his statement in the same setting
in which it was made rather than retracting his position off screen within the print media.
Former FCC General Counsel Geller’s proposal would be a good beginning step
in the direction of placing such candid political discourse in the lime light and thus
encouraging the public to embrace political discussion as it takes on the more tangible
form of position- taking and retracting all on television- preferably during prime- time.
Certainly, any serious increase in political coverage will be aesthetically displeasing to
some portion of the population. Doubtless, repeated debates and coverage of political
issues could easily tire one who is accustomed to one no- brain sitcom after another-
myself included. But if substantive, meaningful political coverage greets young people
(adolescents, 12- 18) on a regular basis in the evenings- early enough that they are not
already asleep or doing something else- then perhaps the next generation might come of
age with the habit of concerning themselves with critical issues that face the country as a
whole. Further, they might translate that concern into holding their politicians more
accountable.
The idea of routine evening coverage of political issues goes beyond Mr. Geller’s
proposal. In order to promote meaningful and lasting discourse about politicians and
political issues, broadcasters must maintain attention on the everyday occurrences of
government after the big election. The FCC should go Mr. Geller one better and mandate
that broadcasters come up with innovative ways to bring candid political debate between
the major political parties on the whole range of issues that fuel the political process and
the everyday administration of the government. When the nightly news reports that the
5
_. ____ ~... _I_ ..-. __ __ l_---..- ll_--
330
Clinton administration and the Congress are in a deadlock over the budget and a federal
government shut- down is in the offing, why not provide incentive to broadcasters to
invite the president and the majority leader to have a sit- down on prime- time television to
talk candidly about their differences. The president and his counterpart would then have
an opportunity to state directly their views on allocations for social security, paying down
the debt, and the defense budget. If they appeared less than candid, perhaps moderators
could pose questions concerning specific allocations and other budgetary decisions.
Additionally, the FCC could encourage broadcasters to create and extend
coverage of political discourse beyond that directly surrounding the president. Anytime
there is a contentious vote in the House of Representatives or the Senate, broadcasters
could provide a forum in which members of Congress could voice the bases for their
decisions to vote yes or no. Such forums would provide an invaluable opportunity for
freshmen members of Congress to get out their message, challenge their own party’s
hierarchy, and assert their legislative raison d’$ tre. Additionally, anytime a member of
Congress appeared on such a forum in prime- time, the state from which he or she hailed
would certainly have cause for heightened interest. When Senator Fred Thompson of
Tennessee gave the Republican Response to President Clinton’s State of the Union
address to Congress several years ago, I was much more interested not only in what he
had to say but the President’s speech in general and the issues that each of them raised.
In short, in order to enhance political discourse, the FCC must require broadcasters to
spend more time on the political process both during elections and in the interim and
must require broadcasters to create more innovative and effective ways to formulate
political coverage.
6
331
CONCLUSION
To sum up, broadcasters presently provide coverage of politics and public affairs
the quantity and quality of which is wholly deficient. This deficiency results both in an
uninformed and uninvolved electorate and a government of politicians who are left
unaccountable for their positions and decisions. In reevaluating the public interest
obligations of broadcasters during the transition to digital television, the FCC should take
significant measures to require broadcasters to improve dramatically their coverage of the
political process. The FCC should devise rules that require broadcasters to create forums
conducive to more candid political discussion among politicians such as debates and
issue- specific interviews. The FCC should require broadcasters to provide these
improved forums more frequently, at more significant times (early prime- time), and in
settings beyond presidential elections such as Congressional debate and interaction
between Congress and the President. While these objectives are far- reaching and
ambitious, anything short of initiatives of this sort will accomplish too little. Thank you
for your consideration.
Cordially,
John T. Dixon
7
..- __ ,-I ” ..~ ._.._.-. “. ,.. .- I_____
332
w= N 2 3 zoo( J
REGINA M. LAMBERT 1161 Edenbridge Way * Knoxville, TN 37923 * 423- 769- 5605 * Lambe mm?;:
March 17, 2000
William E. Kennard Chairman
Federal Communications Commission 445 12fh Street SW
Room TW- A306 Washington, DC 20554
Re: Public Interest Obligations of Television Broadcast Licensees 47 C. F. R. Part 73
MM Docket No. 99- 360 FCC 99- 390
INTRODUCTION AND BACKGROUND
I am a law student at the University of Tennessee College of Law in
Knoxville, Tennessee. In conjunction with an Administrative Law class in which I
am enrolled, I am writing to comment on your solicitation regarding how
broadcasters can best serve the public interest as they transition to digital
transmission technology. Specifically, I address the topic of voluntary self-
regulation of a public interest standard. While the public should ultimately benefit
from the transition to digital television, it would be premature to determine
mandated regulations prior to the completed transition to digital. The
technological and economic uncertainties that are associated with the transition
from analog to digital support implementation of flexible and voluntary self-
regulations joined by economic incentives.
1
333
In order to promote a complete transition from analog to digital television
by the year 2006, the Federal Communications Commission (FCC) gave each
existing analog television station an extra channel to begin transmitting digital
signals. ’ As broadcasters undertake this mandatory transition from analog to
digital, questions arise regarding whether current public interest obligations
should be expanded to accommodate the change and account for the “gift” of
“free” airwaves. However, while stations did receive the extra channel at no
cost, the required facilities that broadcasters must build to be capable of
transmitting the necessary digital signals are enormously expensive.*
Supporters of additional requirements note the opportunities that
accompany the signal given to broadcasters: dramatic increase in the number of
channels; sharpened clarity of images; variety of the type of signals that can be
transmitted; greater ability for programming; and increased ability to provide
access to more people. In sum, because digital broadcasters have increased
opportunities, they should be required to provide additional public interest
obligations.
’ While the FCC originally mandated broadcasters to made a complete transition to digital by the
year 2006, this date was superseded when Congress passed a law permitting analog transmission to continue until 85% of the country has televisions that can receive digital signals.
Some predict this could prevent a complete transition to digital until after 2010.
2 Eric Deggans, St. Petersburo Times, Oct. 31, 1999 at 1 F (noting that one broadcaster, WEDU,
reports that they expect to spend $10 million updating their facilities for digital broadcasting); see
a/ so Rocky Swift, Florida Television Stations Readv for 2002 Switch from Analoa to Diaital, Sun
Herald, Mar. 2, 2000 (“ Outfitting a local n/ station for digital broadcasting can cost between $3
million to $10 million.“)
2
334
EXISTING UNCERTAINTIES
However, increased revenue for applicable broadcasters is not an
absolute. A vice president of a major network stated, “[ I) will take ‘a long time’
before the digital TV audience is large enough ‘to make a difference in the
financials of our business.“‘ 3 Numerous variables contribute to the uncertainties
regarding the future benefits and/ or burdens from the shift to digital television.
At the top of the list is the issue of cost to consumers. At price tags of
“$ 3,500 or more,“ 4 digital televisions are out of reach to many American
consumers, “and thus far are not compatible with cable.“ 5 Additionally, “cable,
satellite providers and computer operators - all of which are subject to much
less governmental oversight - will be competing with broadcasters in the digital
video future.“ 6 Thus, “[ wlhile broadcasters are regulated under a ‘public trustee’
model, cable and satellite providers are subject to much less government
oversight - and computer operators essentially none at all.“ 7 This disparity could
further complicate any potential projected revenues of a broadcaster.
Another variable which frustrates accurate predictions is the current and
future availability of digital television programming for those who can afford
digital televisions. While the quality of DTV is reported as exceptional, “[ elven if
3 Peter Lewis, lndustrv Hopes Price Won’t Cloud Picture for Viewers of Futuristic Screens, Seattle
Times, Jan. 19, 1999 (quoting Peter Smith, vice president of technology with NBC).
4 Christopher Stern, FCC Revisits Dioital Equitv Dilemma, Daily Variety, Dec. 16, 1999, at 5.
’ Id.; see also Lewis, supra note 2.
6 Dick Wiley, Communications Today, Feb. 7, 2000, Vol. 6, No. 23.
7 Dick Wiley, The Bio Picture. Gore Commission Recommendations: Premature?, DV Business,
Feb. 8, 1999, Vol. 12, No. 3.
3
_ _ __. _ ,_.__ _,. ..__- ..,._ . ,...- -
335
you have [a digital television] there’s precious little in the way of live digital
broadcasts to watch. “8 With limited broadcasting, the incentive to purchase an
expensive digital television is curbed. These reasons help explain why it is not
rationally possible at this time to accurately forecast how digital broadcasting will
develop or whether the uncertain future of broadcasters will be successful.
Therefore, while digital broadcasting may provide many new ways to
benefit the public interest, compelling broadcasters to adhere to mandatory
requirements during a costly and questionable transition period is not the best
way to accomplish this goal. Rather, it would be more judicious to allow the
uncertainties to resolve prior to imposing mandatory regulations.
COLLABORATIVE APPROACH
It is best for all interested parties to collaborate on the ways in which
digital television can provide increased public services while creating a voluntary
self- regulation proposal. Currently, a public interest requirement is imposed
obligating a television broadcasting station “to serve the public interest,
convenience, and necessity.“ ’ Voluntary self- regulation does not involve ending
any present regulations of broadcasters’ public interest obligations.” Rather, it
requires a current assessment of technological changes and the addition of
further reasonable and desirable regulations.
a Lewis, supra note 2.
’ 47 U. S. C. 9 336( d) (1999).
lo Broadcasters are currently required to meet FCC policed guidelines in exchange for free use of
analog airwaves. For example, every week a broadcasting station is required to air three hours of
educational children programs. See Deggans, supra note 2.
4
._ . . _” _.._ -_ I __^_ _ -.__ .., - _I-.._^ ..-. -.._ _. l--_ -_. -----.,____.
336
If the FCC permits broadcasters to develop reasonable self- regulations
which they will voluntarily assume, the broadcasters will feel more strongly
committed to the public interest and the regulations they had part in designing.
Additionally, broadcasters will be able to provide valuable contributions through
their analysis of current standards and input regarding improvements that should
be made. The end result will find broadcasters actively involved in the concerns
of their community without unnecessary and unwanted government involvement.
As suggested in the recommendations of the Final Report of the Advisory
Committee on Public Interest Obligations of Digital Broadcasters (the “Gore
Commission” Report), the National Association of Broadcasters (NAB) can act as
the representative of the broadcasting industry. The Gore Commission also
recommends that the NAB develop and recommend self- regulatory standards to
and for the industry. I agree. Additionally, in return for a broadcaster’s voluntary
self- regulation of industry agreed standards, the FCC should provide economic
incentives - such as automatic license renewal upon proof the voluntary standard
was adhered to. In this way, the broadcasting industry can police itself during a
time of drastic change, absent undue government interference.
REPORTING REQUIREMENTS
Broadcasters have shown a strong desire and willingness to commit to the
public interest. However, there may be concern regarding determining and
monitoring self- regulation. In order to police self- regulation, the current quarterly
reports in which broadcasters are required to account for their non- entertainment
programming should be expanded to identify ways in which they are complying
5
337
with the voluntary self- regulation standards. The availability of information will
encourage broadcasters to fulfill their obligations and will also provide public
information to any interested party.
Once digital stations are completely active and in operation for a period of
two to five years, a commission can observe the actual revenues of a
broadcaster and determine whether increased opportunities are in fact proving
lucrative. If this is the case, adjustments can be made and obligations increased.
This will prevent broadcasting stations from additional and costly responsibilities
prior to realizing any financial benefit from digital television. It will also prevent
further financial burdens during a time when the station must spend millions in
order to build digital facilities and make the necessary conversions to go digital.
Additionally, because current obligations of analog television stations will
remain in effect during the transition stage.” Stations must continue to maintain
their duty to serve the public interest. This duty includes the requirement that
they serve the needs of their community by accomplishing the following:
providing programming that addresses local issues;” maintaining minimal
showings of educational children’s programs while limiting the amount of
advertising during those programs;‘ 3 providing political candidates with access to
” Broadcast stations have a number of current requirements that form the core of their obligation
to serve the public interest, convenience, and necessity.
‘* Commission Policy on Programming, 20 Rad. Reg (P & F) 1901, 1913 (1960); Cable Television
Consumer Protection Act of 1992, Pub. L. No. 102- 385, 106 Stat. 1460, 1461 (1992).
” Children’s Television Act of 1990, Pub. L. No. 104- 437, 104 Stat. 996 (1990) (codified as 47
U. S. C. Q 303( a), 303( B) and 394).
6
338
public forums;‘ 4 providing closed captioning for the hearing impaired; 15 and
providing equal employment opportunities. 16
The Gore Commission’s report, which was formulated after a charge from
President Clinton to study and recommend what public interest responsibilities
should accompany the broadcaster’s receipt of digital television licenses, 17 relies
on three basic principles. First, the public should benefit from the change of
analog to digital; second, public interest obligation recommendations should be
flexible so that they can grow and change with the technology; and finally,
information, voluntary self- regulation and providing economic incentives are
better than government regulation. 18 My suggestion will satisfy all three criteria.
While there is no denial that additional obligations will be desirable,
important, and possible, there is simply no immediate need at this time to
mandate government regulations. Voluntary self- regulation will prove far
superior during the challenging transition ahead.
l4 47 U. S. C. 3s 312 (a)( 7) and 315.
l5 Television Decoder Circuitry Act of 1990, Pub. L. No. 104431, 104 Stat. 960 (1990) (codified at
47 U. S. C. §§ 303( u), 330( b); Telecommunications Act of 1996 Q 713 (codified at 47 U. S. C. §
613); Report and Order, MM Docket No. 95- l 76, 12 F. C. C. Red. 3272 (1998).
l6 47 C. F. R. Q 73.2061. In Lutheran Church- Missouri Svnod v. FCC, _ F. 3d _ (D. C. Cir. 1998),
the U. S. Court of Appeals struck down the EEO program requirements as unconstitutional. The
FCC currently has pending a rulemaking proceeding to consider what EEO requirements may
and should service. Notice of Proposed Rule Making in MM Docket No. s 98- 204 and 96- 16, FCC
98- 305 (released Nov. 20, 1998).
” Exec. Order No. 13,038, 62 Fed. Reg. 12,065 (March II, 1997).
” The final report was released on December 18, 1998.
7
-_ .._. --._. ..--~ ---_. “--. .“_
339
CONCLUSION
In conclusion, while the possibility for great advances in broadcasting
exists with digital advancements, much is unknown regarding the future of digital
television. Although the airwaves that broadcasters received were free of
charge, “DTV is by no means a windfall for the industry.“” Utilizing voluntary self-
regulation in conjunction with economic incentives will result in an increased
public duty without unduly burdening or alienating broadcasters. Therefore, the
FCC should be reluctant to impose any additional public interest obligations on
broadcasters. It will be more prudent to allow the broadcasting industry to
determine voluntary self- regulated standards regarding an increased public
interest obligation during the transition from analog to digital. As appropriately
stated in Communications Today:
Iw] e are dealing with a nascent technology and service that still
must find its appropriate place in the communications marketplace.
The imposition of new and burdensome regulatory requirements at
this point, when the success of various digital services is still
uncertain, could stifle experimentation and slow the entire
implementation of digital technology.”
Once digital stations are all active and a determination can be made
factually regarding revenue and opportunities, adjustments can be made, if
I9 Wiley, supra at note 6.
2o j&. “Licensees must endure considerable expense in equipping and operating two stations -
analog and digital - over a lengthy period of time, without any assurance of increased audience
or advertising revenue.” !c&
8
. ..- ---_. I ” ---.-__.. - -~- ^-__-. I-. -. .----_.. l”.” -.-~-
340
necessary, for public benefit. In the meantime, the uncertainties ahead, coupled
with the myriad of challenges facing broadcasters, render mandatory regulations
imprudent and uncalled- for. At this time, the public will clearly be better served
by ensuring a smooth transition to digital absent additional mandatory public
interest obligations.
I respectfully request consideration of this Comment as one that will
ensure the participation and attention of broadcasters during the shift from
analog to digital, as well as one that will increase obligations to the public interest
as feasible.
Sincerely,
Regina M. Lambert
9
I . i _ _. - - .~ 1_ 1”,._. _,^ __. ..- -..* __ -----“”
341
JENNIFER NILES COFFIN MAR 2 3 2000
March 17, 2000
William E. Kennard, Chairman
Federal Communications Commission
445 12th Street SW
Washington, DC 20554
RE: Public Interest Obligations of Digital Broadcasters: Free Air Time for Political Candidates
Dear Chairman Kennard:
I am writing in response to the Notice of Inquiry, In the Mutter of Public Interest
Obligations of TVBroadcast Licensees, MM Docket No. 99- 360. In particular, I would like to
respond to the invitation for comments set forth in paragraph 38. In that paragraph, you report
that a majority of the members of the Advisory Committee on Public Interest Obligations of
Digital Television Broadcasters have suggested that digital television broadcasters should be
required by the FCC to provide free air time to national and local candidates. Contrary to the
opinions of some, I am convinced that the FCC has the authority to impose such regulations on
its broadcast licensees without trampling on either the First Amendment rights or the property
rights of the broadcasters. In doing so, the FCC would merely be adding substance to an
otherwise nebulous mandate of the Federal Communications Act, which is that in exchange for
spectrum rights, broadcast licensees must serve “the public interest.” Further, in light of the
substantial value of the digital spectrum rights “loaned” to existing licensees, the FCC can
legitimately impose these obligations as carefully measured conditions that promote political
democracy. Finally, claims by broadcasters that only Congress can impose mandatory public
interest obligations represent their maddeningly selective invocation of the non- delegation
doctrine, which ultimately serves to paralyze the substantive shaping of the public interest
obligation by any branch of the government.
342
I. The FCC has the authority to impose regulations that require broadcasters to
provide free air time to political candidates.
It is clear from the Congressional mandate that the FCC was granted the authority to
impose obligations on broadcast licensees in exchange for the free use of spectrum space. ’
Congress long ago deemed the airwaves part of the public domain, and both Congress and the
courts have characterized broadcast licensees as “public trustees” who have a fiduciary
obligation to serve “the public interest, convenience, and necessity.“* As the Supreme Court has
acknowledged, broadcasters have been “given the privilege of using scarce [spectrum space] as
proxies for the entire community.” In exchange for this privilege, broadcasters are subject to
limitations on their First Amendment freedoms, and to a certain amount of “taking” by the
community through the mechanism of the FCC.
Although the FCC has steadfastly avoided precisely defining the term “public interest,” it
has nevertheless regulated broadcast licensees with the overarching goal of requiring licensees to
serve the public interest. 3 For example, in the area of children’s programming, the FCC has not
hesitated to set forth quantifiable guidelines, which, if followed by the licensee, assure renewal
of that portion of the license by the FCC. In addition, Congress and the FCC have established
rules that require broadcasters to provide “reasonable access” at the lowest unit cost to
’ 47 U. S. C. 9 309( k)( l)( A) (1994 & Supp. III 1997) (setting forth license renewal standards for broadcast
stations)
2See, e. g., Red Lion Broad. Co. v. FCC, 395 U. S. 367 (1969) (declaring that the government can require a
“licensee to . . . conduct himself as a proxy or fiduciary with obligations to present those views and voices
which are representative of his community and which would otherwise, by necessity, be barred from the
airwaves”); see also CBS, Inc. v. FCC, 453 U. S. 367, 395 (1981) (“ A licensed broadcaster is ‘granted the
free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise
it is burdened by enforceable public obligations.“‘) (quoting Office of Communication of United Church
of Christ v. FCC, 359 F. 2d 994, 1003 (D. C. Cir. 1966)). And as Judge (later Chief Justice) Burger wrote
for the D. C. Circuit, “[ A] broadcast license is a public trust subject to termination for breach of duty.”
OfJice of Communication of United Church of Christ, 359 F. 2d at 1003.
3See Children’s Television Act of 1990, Pub. L. No. 101- 437, 104 Stat. 996 (codified at 47 U. S. C. $9
303a, 303b, 394); 47 C. F. R. 8 73.671 n. 2 (1996) (setting forth guidelines strengthening the requirement
that licensees serve the educational and informational needs of children).
2
“. l----_.-_-.-~--“.
343
candidates for federal public ofIice. 4 These rules and regulations have been necessary to alert
broadcasters to exactly what hoops they must jump through before their licenses will be
renewed. On the other hand, voluntary guidelines, as suggested by the Advisory Committee, do
not fairly alert broadcasters of their obligations, and those who wish to avoid their requirements
may easily do so. To require free broadcasting time would merely be a “fleshing out [of] a core
responsibility of broadcasters as public trustees” 5 and of our collective conception of the
democratic process.
Both of these policy goals can be implemented by the FCC, which was granted authority
by Congress to grant and renew licenses only to those broadcasters who serve the public interest
by meeting the criterion of presenting candidates to the public. Members of Congress who
declare that the FCC may not do so without legislation apparently have forgotten Congressional
statements to the contrary. 6 But most fundamentally, because Congress has decided to “loan”
substantially larger digital spectrum rights to existing licensees until 2006, it should not wonder
that the public- or the FCC- considers increased governmentally subsidized licenses to come
with increased burdens. ’ To claim that an FCC mandate would violate the non- delegation
doctrine in this instance, but not in many other comparable instances, is nothing more than an
effort to paralyze the very agency to which Congress obviously intended to delegate a certain
4See 47 U. S. C. $9 312( a)( 7), 315( a)-( b) (1994); 47 C. F. R. $0 73.1941, .1942, .1944 (1996).
‘Henry Geller et. al, Petition of Common Cause for Inquiry or Rulemaking to Require Free Time for
Political Broadcasts (tiled Oct. 2 1, 1993) (Geller Petition).
‘See id. at 2- 3, 17 (quoting S. Rep. No. 92- 96, 92d Cong., 1st Sess. 28 (1971)) (“ The presentation of
legally qualified candidates for public office is an essential part of any broadcast licensee’s obligation to
serve the public interest, and the FCC should continue to consider the extent to which each licensee has
satisfied his obligation in this regard in connection with the renewal of his broadcast license.“)
‘See Press Release, Media Access Project, Media Access Project Welcomes FCC Action on Public
Interest Obligations of Digital Broadcasters, Dec. 15, 1999 (“ Now that broadcasters have double the
spectrum, they should provide at least twice as much service.“). The president of Media Access Project,
Andrew Jay Schwartzman stated, “The cost of political advertising and the a perception by programming
executives that politics doesn’t ‘sell’ has reduced us to a sound- byte electorate. Hopefully the
Commission’s [NOI] will force broadcasters to re- evaluate their priorities and live up to their obligations
to the American people.” Id.
3
344
amount of discretion. If Congress won’t define “public interest” to include mandatory air time
on public airwaves, and the FCC can ‘t because it’s Congress’s responsibility to do so, then
broadcasters and Congress are in a merry state indeed. And it is the public who suffers from this
trumped- up political handwringing, the very public whose access to the political process is at
issue here.
II. The First Amendment rights of broadcast licensees would not be unconstitutionally
restricted.
The Supreme Court has consistently upheld the regulation of broadcasters’ speech, basing
its decisions on the scarcity rationale articulated in Red Lion. It is true that the scarcity rationale
articulated in Red Lion has been subject to increasing criticism, no doubt due in large part to the
massive increase in available outlets for the dissemination of information. Thus, it becomes less
tenable to argue that the government may restrict the speech of broadcasters because there are
only a few speech outlets to be had. Nevertheless, there are at least two other viable rationales
for restricting the speech of broadcasters without running afoul of the First Amendment.
a. A broadcast license can be conceived of as creating a limited public forum.
The first alternative rationale is that the broadcast license creates a limited designated
public forum, and that as such it can be subject to legitimate government restraints on speech. ’
Under this rationale, the FCC can point to the “public debate theory” of the First Amendment.
And in response to the laissez- faire approach to the First Amendment, the FCC can make the
thoughtful and well- reasoned argument that given the disproportionate aggregations of power in
our market economy, a democratic system must permit the government to “take an active role in
promoting free speech values and political deliberation,“ g and to “‘ try to ensure political
equality. “‘ lo Further, the FCC can point to the proposition that the marketplace does not always
‘See Charles W. Logan, Jr., Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 Cal. L. Rev. 1687, 1690 (1997).
91d. at 1717 (citing Cass R. Sunstein, Democracy and the Problem of Free Speech 256 (2d ed. 1995))
“Id. (quoting Sunstein, supra note 9 at 256).
4
.._ --_----- ._ ll-._ l - .~ I_____
345
function to properly include important political issues or views” and, most importantly, that the
market is not an adequate substitute for the marketplace of ideas.
In my view, market efficiency functions by definition to exclude important issues and
views, as they may be by their very nature “inefficient.” If the First Amendment, which is at its
very essence the champion of the democratic ideal of self- governance, were left to market forces,
we would likely be left with the irony of a de facto, but market- driven, censorship of the political
process. The notion of the First Amendment as a wide- open gate to the vast marketplace of ideas
should not used by broadcasters to limit its benefits to the majoritarian and utterly commercial
pressures of the market. Indeed, if we could comfortably leave our government to the market,
we wouldn’t need the First Amendment in the first place. I do not mean to suggest that we can
comfortably do the opposite- that is, leave the market to the government- because of course we
cannot and do not. However, there must be in some instances a comfortable, fair, and
democratic middle ground. In the specific context of broadcasters, the middle ground is that the
broadcasters have agreed to be subject to regulation in exchange for the exclusive and designated
use of valuable public property in the form of a limited public forum. And if that regulation is in
the form of the government’s assistance in promoting the free speech rights and political
involvement of the citizenry, then the middle ground is even more constitutionally firm.
b. The broadcast license can be conceived as a quid pro quo arrangement.
The concept of an exchange leads to the second rationale for imposing regulations that
may restrict the speech of broadcasters, the quid pro quo rationale.‘* Broadcasters get free
spectrum space; in exchange, the government imposes regulations on the broadcasters as public
fiduciaries. This is not to say that under the quid pro quo rationale, the government has an
121d. at 1729- 33. Logan persuasively argues that it is the preferred position of the broadcasters, as
compared with newspaper publishers for example, that justifies the reduced First Amendment protection
afforded broadcasters: “It is not scarcity that is the distinguishing factor, rather it is the subsidy of
broadcaster speech that has taken place in the government’s allocation of scarce spectrum rights.” Id. at
1730.
346
unlimited right to restrict or regulate the speech of broadcasters. The regulation must be
reasonable and viewpoint neutral, and above all, must allow the broadcaster to retain its
discretion. 13 To require broadcasters to give twenty minutes of free air time during a limited
period before an election, in my view, would not be an outrageous incursion into broadcasters’
space, but would instead be an example of democracy at its finest. Because the both
broadcasters and the public have legitimate concerns about journalistic discretion, the
broadcaster of course would be permitted to determine the format of the presentations, the time
of the presentations, and which race to follow. But as public trustees, the broadcaster would also
be required to provide the public with free, open, and uninhibited commentary and debate from
the candidates themselves.
Some commentators dispute the quid pro quo rationale, claiming that the free grant of
digital broadcast spectrum is “by no means a windfall.“ r4 According to this argument, licensees
must spend money to equip their new digital stations, as well as keep their analog stations up and
running. However superficially appealing this argument may be, it ignores the fact that while
broadcasters may have to “endure considerable expense” to operate their digital stations, one
thing they don’t have to pay for is a multimillion- dollar broadcasting license. The appeal of this
argument can be even further discredited when one notes the alacrity with which the broadcast
industry resists proposals that they pay for their spectrum rights, being “quick to cloak
themselves in their public trustee robes whenever they need something from Congress- be it free
spectrum for digital, or the ‘must- carry’ rule that Congress adopted.“‘ 5 Again, the argument that
13See genera& id. I am sensitive to the need for broadcaster discretion, and only argue that the
broadcasters be required to provide time to political candidates, without condition on the content or viewpoint or presentation.
14See, e. g., Dick Wiley, Public Interest Obligations for DTV Licensees: Proceed with Caution,
Communications Today, Feb. 7,200O.
“Paul Taylor, Superhighway Robbery: America’s Broadcasters v. the Public Good, The New Republic
(May 5, 1997), at 20. And as Henry Geller has noted, calling the turnabout a “new definition of chutzpah,” “[ blroadcasters themselves vigorously opposed spectrum usage fees or spectrum auctions
specifically on the ground that they have public service obligation and therefore cannot act like the usual
business simply to maximize profits.” Geller et. al, supra note 5 at 2 & n. 4 (citing Broadcasting
Magazine, April 19, 1993, at 64).
6
347
the broadcasters need less regulation in order to compete fairly with other information providers
subordinates our political process to the increasingly consumption- driven forces of the body
politic. 16
III. Requiring broadcasters to provide free air time would not be an unconstitutional
“taking” under the Fifth Amendment.
The general hue and cry over this issue has been that if the government requires free air
time, it would in effect be “taking” many billions of dollars worth of air time from broadcasters
without just compensation. This argument strains credulity. First, it is hard to swallow the
notion that broadcasters have any greater property right than what they were granted in the first
place, which was a license burdened with public interest obligations. Because broadcasters have
gotten no more than that, if the government imposes public interest obligations, it “takes”
nothing. The government is simply exercising the condition that originally burdened the license
(and presumably lowered its value). And despite the theoretical discount in value created by the
attached obligations, the burdened license is extremely valuable. Although it may be difficult to
measure, the estimated marketplace value of the licenses granted to broadcasters falls somewhere
between $11.5 and $132 billion.” Furthermore, the total value of digital set- asides that have
already been granted to existing licensees has been estimated to be between $11 and $70
billion. 18 Thus, the combined value of these licenses approaches $2 10 billion (and they do exist
““ When it comes to news coverage, ‘serious news is out, the exotic is in- the scandal, personal peccadillo
stories, crime, minor things that don’t reflect the public interest.” Kathy Chen, Issue of TV Air Time for
Public Affairs Is Raised Anew: Regulators Weigh How to Expand Standards for Digital Broadcasting,
Wall St. J. (Dec. 15, 1999), at B4. Cable and satellite TV “has put pressure on broadcasters to ‘pander to
the lower- common- denominator taste’ as a way to hold onto market share.” Id.
“See Logan, supra note 8 at 1727 & n. 235 (citing an FCC staff study; Nat’1 Telecomm. & Info. Admin.,
U. S. Dep’t of Commerce, U. S. Spectrum Management Policy: Agenda for the Future (NTIA Special Pub.
No. 91- 23, Feb. 1991); Christopher Stem, HDTV Spectrum May Be Auction Target, Broadcasting &
Cable, Mar. 27, 1995, at 9)
‘* See id. ; see also Taylor, supra note 15.
7
-.. .-. .-. _ .l._.--~“- l__ .-
348
in combination, at least until 2006). According to the National Association of Broadcasters,
broadcasters boast that they “provided $148 million in free air time to politicians in the last
general election in 1 996.“ 19 The simplest math suggests to me that broadcasters are coming
away from this deal with a subsidy of tens of billions of dollars, even considering the free air
time so generously donated.
Second, broadcasters wildly profit from the use of their free spectrum rights, with the
means to those profits being provided by the public. Thus, the requirement of free air time for
candidates could be viewed as simply a return on the public’s investment in broadcasting via the
subsidy. According to industry estimates, “candidates spent $500 million in paid political spots
on television in 1995 and 1996.“* ’ In light of the fact that the figure represents “less than 1
percent of gross advertising revenues over that two- year period,” broadcasters can certainly
afford the outlay.” Broadcasters’ dire warnings of “Big Brother” are disingenuous. Because
broadcasters “made a social compact with big brother- and through him, with the American
public- sixty three years ago,” they should now be required to live up to their end of the bargain**
and even pay out a dividend in the process.
IV. Conclusion
Due to the special relationship between broadcast licensees and the government, it is fair,
legal, and necessary that the FCC take this opportunity to establish and enforce an obligation on
the part of broadcasters to provide free air time to political candidates. In doing so, the FCC can
rely on established First Amendment jurisprudence to avoid constitutional challenges based upon
“Chen, supra note 16, at B4.
20Taylor, supra note 15.
*‘“ That’s a small fortune in politics, but it’s small change to the industry . . . .” Id
221d.
8
349
free speech. With respect to the Fifth Amendment argument, the FCC can remind the
broadcasting industry of the deal it struck many years ago, and of the considerable public subsidy
it continues to receive with the digital set- asides. Finally, it might be argued that broadcasters as
fiduciaries owe the public a fair return on its investment and should not be permitted to choke the
administrative process only after they have reaped the benefits.
I do not doubt that the details of a free air time obligation would be better hashed out by
those most intimate with the industry, and I know that there have been workable proposals
brought to the FCC’s attention. 23 My comments have been aimed more at adding my opinion to
the fray, an opinion backed in part by authority and in part by an urgent sense that we are
dangerously near accepting the application of market- based standards to our very political
process. As a citizen, I object. For these reasons, I urge the FCC to reject those standards and
take a firm stance against industry pressures, refusing to yield to the demands of the market. In
requiring public trustees to yield instead to the demands of democracy, the FCC will help place
this democratic nation in the company of other democratic nations who have already taken this
step.
Sincerely yours,
Third- year Student
University of Tennessee College of Law
1.505 W. Cumberland Ave.
Knoxville, TN 37996
cc: Glenn Harlan Reynolds
23See Geller Petition, supra note 5 .
9
350
To: FCC From: Chris Wimberly Rc
Re: DTV Comment
Date: March 17, 2000 i
-“_ - ,_” ,. ,__-. w __.” ,__,. --
-- _ _.^
351
My name is Chris Wimberly, and I am an Administrative Law student at the
University of Tennessee Law School. This comment addresses two issues. The first
issue is whether the Federal Communications Commission’s public interest requirements
should change or remain the same during the transition from analog television to digital
television. The second issue is whether the increased costs of digital television equipment
will allow such public interest material to reach the general public after the complete
transition to digital television.
I. Public Interest Reauirements During the Transition from AnaloF to DiPital
Television
Notice of Inquiry 65 FR 4211 could not have been more correct when it stated
that “[ tlelevision is the primary source of news and information to Americans.”
Television not only provides the majority of Americans with 60 second analyses of
important local and world events, but also tells Americans what to wear, what to eat, what
to look like, and who to be like. Television is much more popular and powerful than
other media forms such as radio and printed matter because television consists of visual
images whose primary purpose is entertainment. This entertainment form necessarily
affects the type of content and information that television provides to most Americans.
Therefore, since the transition from analog to digital television entails a shift to an even
more entertainment based form of television, care must be taken to craft public interest
1
352
requirements that will be effective in the age of digital entertainment technology.
The transition from analog television to digital television and high definition
television will eventually result in the complete replacement of one entertainment based
form of media with an even more entertainment based form of media. Digital television
(DTV) and high definition television (HDTV) are advanced forms of television that have
been described as “ watching a moving photograph, with a clarity and level of detail more
akin to looking out the window than watching TV.” Both DTV and HDTV have also
been described as “delivering a big, bright, and absolutely stunning picture.” Suzanne
Kantra Kirschner, HDTV Comes Home, Popular Science, Fall 1999, at 96. Descriptions
such as these suggest that the main effect of DTV will be to increase the quality of the
visual imagery of television and therefore increase the entertainment value of television.
Since the transition involves a shift from one entertainment based form of media to an
even more entertainment based form of media, the Federal Communication Commission’s
public interest requirements must be reconsidered during the transition in order that they
begin to adapt to the environments of DTV and HDTV.
In concluding that public interest requirements need to be reconsidered when one
form of entertainment based media shifts to an even more entertainment based form of
media, it was helpful to compare the present day analog to DTV shift to the original radio
to TV media shift. At first glance, these two media transitions may seem to have very
little in common. However, they are actually quite similar because both transitions deal
2
353
with a change in the media source from which most Americans obtain their information.
The effect of the change from radio to television was substantial. Pre- television radio
was well suited to provide important information about complex subjects. But when
television appeared, more Americans began to obtain their information from television
because of its increased entertainment potential and visual imagery. The entertainment
aspect of TV attracted a larger audience and the overall result of this was that television
became more concerned about entertainment and less concerned about providing detailed
information to Americans. The shift from analog television to DTV is similar to the shift
from radio to television in that it is a transition from the major source where most
Americans get their information (analog TV) to a more entertainment based source where
most Americans will get their information (DTV). However, the shift from analog TV to
DTV has the unique opportunity to lay a foundation of enhanced public interest
programming during its transition period. If more attention was paid to public interest
programming in the transition period between radio and television, then possibly the
entertainment aspect of television would not so grossly outweigh the other aspects of
television. Therefore, it is important to stress public interest programming during the
transition from analog TV to DTV so that the entertainment aspect of DTV does not
totally encompass the airwaves.
II. Increased Costs of DTV
The transition from analog TV to DTV and HDTV is unique in that the new media
3
354
form will completely supplant the old analog media form. This type of transition is
different from past media transitions such as network TV to cable TV and radio to
television because after transitions such as these, a consumer could still use his or her
older equipment to get a signal and access information or entertainment. After the
transition from radio to television, a consumer could still use his or her radio. After the
transition from network to cable TV, a consumer could still use his or her television to
obtain network or cable television programming. The transition from analog to DTV and
HDTV is different. In order for a consumer to enjoy DTV or HDTV he or she must
purchase a special set of equipment. A consumer’s old analog equipment cannot be used
to access DTV or HDTV.
The fact that consumers cannot automatically access this new media form poses
certain problems concerning the public interest requirements that the FCC decides to
impose upon DTV and HDTV when it has completely supplanted analog television. The
main problem that arises is that DTV and HDTV equipment is considerably more
expensive than analog television sets. Consumer will have to pay a large amount of
money in order to use DTV because their old analog sets will not be useful anymore. This
was a concern of Congress when it enacted the Telecommunications Act 1996. The
legislative history of the Telecommunications Act states:
[t] he Committee is particularly concerned that the consumer
equipment necessary to implement digital technology will be
too expensive for most consumers. Some observers have
estimated, for example, that the cost of a digital converter
4
355
is expected to be in the $400-$ 500 range, with monthly
charges in excess of $4.
Act of Feb. 1, 1996, Pub. L. No. 104- 104, 1996 U. S. C. C. A. N. (110 Stat. 56) 75. The
$400-$ 500 estimate given by Congress is likely a low estimate. An article in Popular
Science states that:
[a] DTV ready set costs about twice that of an analog
TV ($ 1,800 for Panasonic’s). In most cases, it’s a
4- by- 3 ratio screen, so it can’t display 16- by- 9
ratio broadcasts without either cropping the image or
using only a portion of the screen. And you have to buy
a decoder box costing $1500~$ 2500 to receive digital
signals. That’s a lot for satellite- level quality, but only
half the cost of an HDTV.
Suzanne Kantra Kirschner, HDTV Comes Home, Popular Science, Fall 1999, at 96. The
combined prices of a television set, decoder box, and antenna can range from $4,000-
$25,000. The television sets alone range from $1,800 up to $22,000. The fact that DTV
equipment is much more expensive than analog equipment creates a problem with regard
to the FCC’s public interest requirements in that the overall effectiveness of public
programming will be lessened if the general public cannot access that programming. This
problem is unique to the analog/ DTV shift because other media shifts throughout history
have allowed the consumer to have the option of using his or her older form of media to
access information. The transition to DTV does not give consumers that option. The
transition to DTV will not even give broadcasters the option of broadcasting with analog
equipment after the changeover date has passed. Thus the transition to DTV not only
5
356
results in increased costs for consumers, but also results in increased costs for
broadcasters who must buy special equipment to survive in a digital world. What about
the consumers who cannot afford the increased prices of DTV technology? What about
the consumers who prefer analog TV? What about the consumers who prefer black and
white TV? What about the smaller broadcasters who cannot compete because they cannot
afford digital technology? These are questions that should be considered when a
complete replacement of a form of media is contemplated, especially when the new form
is considerably more expensive than the old form. I understand that prices are high now
because the technology is new. But even if the prices go down in the future, public
interest programming after the transition to DTV will not be immediately accessible to the
general public because the general public was waiting for prices to go down. Therefore,
the cost of DTV and HDTV must be caretilly considered so that the general public will
have access to the general information, entertainment, and public interest programming
provided by DTV.
Conclusion
The transition to DTV entails a media shift from one entertainment source where
the majority of Americans obtain their information (analog TV) to an even more
entertainment related source (DTVEIDTV) where most Americans will presumably
obtain their information. This enhanced entertainment value seems to be the main feature
of DTV/ HDTV. Aside from features such as multicasting and datacasting, the main
6
357
technological advancement of DTV seems to be that the picture looks better. DTV will
possess the same entertainment appeal that analog TV did, and as a result, the
entertainment aspect of DTV will grossly outweigh the public interest aspect of DTV.
This problem of making public interest programming noticeable on DTV should not be
approached by tailoring public interest requirements to the new technology DTV has to
offer. No one is going to pay more attention to public interest programming just because
the picture is a little clearer. The FCC’s public interest requirements should instead be
reconsidered and implemented during the transition from analog TV to DTV. This
transition period presents a unique opportunity to lay a foundation for better public
interest programming before everyone has focused all their attention on how much better
that explosion looked on DTV. A transition period such as the one during the shift to
DTV was not present during the shift from radio to TV. Perhaps revamped public interest
requirements implemented early on in the transition will have a beneficial effect down the
road.
The transition from analog TV to DTV and HDTV is not just another
technological advancement. Advanced television systems such as DTV and HDTV are
different from technological advancements in the past because this time the new
technology is completely supplanting the old technology. A consumer who has analog
TV equipment will not be able to use that equipment once the switch to digital television
completely takes place. This was not the case when the media shift from radio to
7
358
television took place, nor was it the case when the shift from network TV to cable TV
took place. In those instances a consumer could always choose to utilize his or her older
equipment. In the case of DTV, a consumer will have to purchase a rather expensive set
of equipment in order to access DTV. It is entirely possible that some consumers might
not like DTV or might not be able to afford DTV at first. Thus any public interest
programming that takes place after the complete transition to DTV might not be
accessible by the general public. In order to solve this problem, DTV should be made
optional both to the consumer and to the broadcaster. The legislative history of the 1996
Telecommunications Act states as its purpose to “ promote competition and reduce
regulation in order to secure lower prices and higher quality services for American
telecommunications consumers and encourage the rapid development of new
telecommunications technologies.” Act of Feb. 1,1996, Pub. L. No. 104- 104, 1996
U. S. C. C. A. N. (110 Stat. 56) 11. I don’t understand how eliminating from the market
those broadcasters who can’t afford to immediately switch over to DTV technology
“promotes competition.” Nor do I understand how increasing the prices of television
equipment constitutes “securing lower prices.” After every other media shift in this
country, the consumer and/ or broadcaster has always retained a choice in deciding
whether or not to utilize the newest and most expensive technology. A consumer could
still choose to use a radio from 19 12 if he or she desires. In my opinion, the transition
from analog TV to DTV should be no different.
8
359
ADMINISTRATIVE LAW COMMENTS
Submitted by: Katrina Shepherd
Submitted to: Professor Reynolds
March 17.2000
._. __-.__ xI...- ._-__^ ____ ._...__ ---- ---
360
IntroductionBackmound
On January 26,2000, the Federal Communications Commission issued an advance notice
of proposed rule making regarding the public interest obligations of television broadcast
licensees. Advance Notice of Proposed Rule making, 65 Fed. Reg. 4211 (Jan. 26,200O). This
notice of proposed rule making solicited comments on how broadcasters can best serve the public
interest as broadcasters make the transition from the traditional National Television Standard
Committee’s analog televisions to the technologically advanced High Definition Televisions
(HDTV). By the year 2006, and probably later, the television that almost every American has in
their home will be obsolete. ’ This is due to the fact that the analog television sets that most of us
own will be off the air. The Federal Communications Commission initially decided to move
from analog television to let over- the- air broadcasters offer high definition programs, but the
FCC later realized that High Definition Television provided new opportunities for television
programming. ’ The technological advancement of High Definition Television can provide
broadcasters with better ways of fulfilling their public interest obligations.
One of the areas of public interest for which High Definition Television may have a
profound effect involves disaster warnings. As a law student and interested citizen, I am writing
‘HDTV: The Future of Television (visited March 13, 2000)
chttp:// coverage. cnet. com/ Content/ Gadg; endex. html>.
2Current Briefing: Public TV Goes Digital and High Definition (visited March 13,200O)
.
361
this comment in response to the Advisory Committee’s recommendation that broadcasters should
work with the appropriate emergency communications specialists and manufacturers to
determine the most effective means to transmit disaster warning information. The committee
advises that the means chosen to transmit these warnings should be minimally intrusive on the
bandwidth and not result in undue additional burdens or costs on broadcasters. Because of the
potential applications of High Definition Television, it is my contention that this
recommendation could and should be met.
Discussion
Many towns and cities throughout this country do not benefit from local disaster warning
systems. This is because many of these cities or towns cannot afford to purchase these systems.
The people who live in these towns and cities rely on the warning information they receive from
or during television broadcasts. If, as the Advisory Committee Report explains, digital
technology will provide innovative and new ways to transmit warnings, such as pinpointing
specific households or neighborhoods at risk; then broadcasters would be providing a tremendous
public service by taking advantage of these technological advances. If we were to conduct a
cost- benefit analysis, it would be clear that the benefit of saving lives would far outweigh any
costs that may be incurred by broadcasters.
Capabilities that Digital Television Can Give to Broadcasters to Deliver Disaster- Related
Information
How can digital television help broadcasters effectively transmit disaster warning
information? To answer this question, it may be best to examine some of the technological
2
362
benefits that digital television can provide in order to determine how these advancements can be
used to transmit disaster warning information. Some of the technological advancements of
digital television that I believe may have an important impact on the transmission of disaster
warning information includes: the width- to- height ratio of the digital television screen, the
capability of digital television to receive the new Emergency Alert System, the capability of
digital television to conduct multicasting, and the capability of digital television to interact with
the Internet.
Width- to Height Ratio
First, digital television is a new way to transmit programming material, such as the
transmission of disaster warning information. A digital television has the potential to provide
much more information on your television set. “By transmitting the information used to make a
television picture and sound as ‘data- bits’ ( as does a computer), a digital broadcaster can carry
more information than is currently possible with analog broadcast technology.“ 3 Digital
television boasts a 16: 9 wide screen picture as opposed to the 4: 3 wide screen picture of current
television models. ’ Because of the larger screens, emergency information can be displayed at the
same time that a program is being shown without substantially obscuring the regular program.
Information can be displayed on more than one line at a time. The viewer can receive all of the
information at once. If the information is taking up less space on the screen, then the information
can remain on the screen for a longer period of time. Therefore, the viewer can be sure to see the
3Digital Television Tower Siting Fact Sheet and Frequently Asked Questions (visited
March 14,200O) .
‘HDTV, The Future of Television, supra note 1, at 1.
3
- --___ I...- ._. x_. “,_~_--.-- _-___ .-.
363
warning at any time rather than risk the possibility of missing the warning by leaving the room
during the same interval when the warning is flashed on the screen.
Capability to Receive the Emergency Alert System
Second, the all digital television- broadcast signal of High Definition Television will be
receptive to the new Emergency Alert System because the Emergency Alert System uses digital
technology to distribute messages. 5 As I understand it, the Emergency Alert System replaced the
Emergency Broadcast System, which was created in 1963 to provide the President with a means
to address the American people in the event of a national emergency. 6 “This new system
replaced the weekly ‘only a test’ message with less obtrusive weekly tests and shorter, monthly
on- air tests for television and radio stations.“ 7 Television stations are also required to transmit a
visual message once a month. * These messages are supposed to last for a duration of about eight
seconds. ’
Because of the digital nature of the new Emergency Alert System and High Definition
Television, the potential for automated operation can be viewed as a cost efficient benefit for
broadcasters. The Emergency Alert System uses digital system architecture that will allow
broadcast stations, cable systems participating satellite companies, and other services to send and
‘Emergency Alert System Fact Sheet (visited March 14, 2000)
.
61d at 1. A
71d. at 1.
81d. at 1.
91d at 1. -
364
receive emergency information quickly and automatically.” Therefore, by utilizing these new
technologies, broadcasters could continue providing this national service without at least one
additional cost because they would not have to employ individuals just to operate the alert system
in the event a national emergency should arise.
Multicasting Capabilities
Third, digital television provides technology that can facilitate multicasting capabilities
that could assist broadcasters in their transmission of disaster warning information. Multicasting
capabilities allow stations to air four, six or more standard definition program streams at a time.
This technology also allows stations to broadcast various data and audio channels.”
Broadcasters have been granted free bandwidth for use with the transition to High Definition
Television.” High Definition Television requires a bandwidth of 6MHz, which is four times that
of a normal analog signaLl This means that a traditional television network could broadcast its
regular network programming as well as have two other stations broadcasting different programs,
and network broadcasters would still have free signal space that could be used for any purpose
the broadcaster chooses. The broadcaster could use this extra signal space for the transmission of
emergency information. Since the government has already developed a plan that would involve
broadcasters returning the free parts of the broadcast spectrum to the government to be used for
‘“ a at 2.
“The Future of Television, supra note 1, at 3.
12HDTV: Join the Resolution (visited March 13, 2000)
.
131d. at 3.
5
- _ --_--..- . -_ .---.- - - .-- ,__ _, I_ _--____ l ---.. -.-
365
public safety, police and fire usage, the only thing left to say is that I hope that this plan will be
implemented.
Internet Capabilities
Finally, broadcasters could also consider utilizing the emerging Internet opportunities that
have been opened up with the growth of the digital television market to assist them in the
transmission of disaster warning information. The computer industry is moving in the direction
of data broadcasting, and it is planning to make over- the- air data reception a key feature in future
products.‘” As we have witnessed with the introduction of WebTv boxes, the television can be
used in conjunction with the Internet. The digital signals of High Definition Television will
contain a data channel which could carry related information such as scrolling text or computer
software downloads.‘” Television broadcasters could expand their viewing services by acting in
conjunction with Internet Service Providers to provide viewers with quick and easy access to the
information superhighway as a way to more effectively transmit warning information.
People who live in rural areas can have easier access to the World Wide Web by just
turning on their televisions. Those people who live in these rural areas could obtain up to the
minute warning reports by pushing a button on their remote control. For instance, the
broadcaster and the Internet Service Provider could develop an arrangement where they set up a
link to a warning center Internet site that could be designed to provide specific warning
information to a particular area. If a viewer/ user were watching a television news broadcast and
“Digital Television ‘99: Navigating the Transition in the U. S. (visited March 12, ZOOO)
.
“The Future of Television, supra note 1, at 1.
6
366
there was a report of a storm warning for the entire state, the viewer/ user could access the link to
her area warning center to find out a possible estimation of the impact of the storm on her
particular area. In light of the fact that this technology has not been developed yet, it can only be
suggested that broadcasters consider this technological possibility as a way to fulfill its public
interest obligation to transmit disaster warning information.
What Role should the Federal Communications Commission Plav in the Realization of
Advisorv Committee Goals?
It is my opinion that the Federal Communications Commission should assume the role
that it has already assumed on this issue. I assume that the Federal Communications
Commission’s role on this issue will be that of a rule maker. I suggest that the Federal
Communications Commission establish rules that will ensure that digital television services
provided by broadcasters will incorporate viewer friendly technology that all citizens can receive.
Ultimately, it is my belief and hope that the Federal Communications Commission will maintain
an active involvement in this transition from analog to digital television and that this
Commission will remind broadcasters that public safety, through disaster warnings, is a worthy
incentive to develop new technology that will provide this service.
Conclusion
In closing, I would like to say that if consumers are going to have to pay thousands of
dollars to purchase a digital television, the government and broadcasters should be willing to
provide consumers with a quality product and service that can benefit the public. Digital
television has the potential to broaden the impact of television and digital communication on the
7
367
public. Therefore, by taking advantage of the technological advantages of digital television, as
they may impact public safety concerns, broadcasters can ensure viewers that they will be
receiving services that would be worth every penny of their investment in these new televisions.
8
_...._.. -Ix ...” ..- l.._ l_-- F. l-__-- -- _-~---. -
368
William E. Kennard
Chairman
Federal Communications Commission 445 12th Street SW
Room 8B- 20 1 H
Washington, DC 20554
RE: CS Docket No. 98- 120
MM Docket No. 99- 360
Public Interest Obligation of Digital Television Broadcasters
Dear Chairman Kennard,
I am a student at the University of Tennessee School of Law. I am responding to
the request for public comments, 65 Fed. Reg. 421 l- 01, (January 26, 2000), Public
Interest Obligations of Digital Television Broadcasters. I am concerned about the impact
digital television regulations will have on the flexibility broadcasters will have in
carrying out their public service obligations.
Introduction
The Federal Communications Commission is charged with regulating the
television broadcast industry to ensure that the broadcast licensees “serve the public
interest, convenience, and necessity” ’ as they are required to do in return for their free
use of the public airwaves. In carrying out this duty, the FCC must be careful not to
infringe the First Amendment rights of the broadcasters2 Therefore, the FCC currently
allows a great deal of discretion to the broadcasters in how they perform their public
interest services. The FCC should formulate a set of guidelines that will be minimally
1
Angela R. Bolton
369
intrusive upon the broadcasters’ discretion to air programs that will appeal to the tastes of
the communities that they serve. In order to maximize broadcaster discretion any new
requirements should be phased in over time and should focus on enhancing access to
television media by those who are disabled.
Ensuring Broadcaster Discretion
At the present time, broadcasters serve the public interest in a variety of ways. In
the process, they have discovered that serving the public interest also serves their own
financial interest. I have always found the advertisements for local news stations to be
amusing. They rarely talk about their news- gathering abilities. Instead they tout “how
much they care about the community” and brag about all the good things that they do.
While I laugh at their lack of modesty, the fact remains that these stations do a lot of
good things for the communities they serve. They host telethons and other fundraisers
for charities, inform the public of community events, let their viewers know of public
health risks and dangerous weather conditions, and the list continues. According to the
National Association of Broadcasters, $6.85 billion was spent by broadcasters in
fulfilling the obligation to serve the “public interest, convenience and necessity.“ 3
However, the broadcasters’ motive in all of this public service is not purely
altruism. Nor is it merely compliance with FCC regulations. Public interest programming
attracts viewers to watch local television. In fact such services are important functions
for all media. For example, newspapers are not subject to FCC regulations but perform
many of the same services. Keeping the public informed and participation in the
’ Communications Act of 1934, chap. 652, sec. 303.
’ See, Turner Broadcasting Svstem, Inc. v. FCC, 5 12 U. S. 622,650 (1994).
3 National Association of Broadcasters, Broadcasters, Bringing Community Service Home,
April 1998, p. 2.
2 Angela R. Bolton
.,..._. -_____ l_- --.
370
community sells newspapers. Similarly, broadcasters make money by spending money
for public service.
Digital television will offer new ways for the broadcast licensees to fulfill their
public service obligations. Broadcasters also have financial incentives to offer these new
services to the public. If they provide more services and better quality programming,
then more people will choose to watch their stations. Advertisers will pay more to have
their advertisements shown on popular stations. That is simple economics.
Unfortunately, an economic analysis is not well- suited to the broadcast industry
because it is not an true free market. Only those broadcasters who agree to serve the
“public interest, convenience, and necessity” may become licensed to use the airwaves.
A problem exists when it comes to deciding what exactly is in the public interest.
Apparently, it means much more than just what interests the public, otherwise “Howard
Stern” and “Jerry Springer” would qualify as public interest programming because of the
large number of viewers. In defining the public interest, the FCC must be careful to not
“impose upon [the broadcasters] its private notions of what the public ought to hear.“ 4
There are some things that are unquestionably in the public interest. For example,
no reasonable person would dare suggest that broadcasters do not have a responsibility to
report that a dangerous storm is approaching a community in its service area. Other items
such as public service announcements are somewhat trickier, however. Public service
announcements can be very informative. They often can be little reminders not to use
drugs or can teach a lesson in respecting others. Such announcements have public value
and so clearly serve the public interest. However, there are also other public service
4 Network Programming Inquiry, Report and Statement of Policy, 25 Fed. Reg. 7293 (1960). 3
Angela R. Bolton
-_ . _ - -. _ _ _ll--_ l_-._-..-__-.- --_ I_.
_____ .-__-
371
announcements that are somewhat controversial. Such announcements could discuss sex
or the use of condoms or refer to homosexuality. While I personally feel that such
announcements also serve the public interest, I can understand the position some
broadcasters find themselves in when they have to decide whether or not to air such
announcements. They have to serve the community they are in and attempt to maintain
their audience. Other broadcasters may have to decide whether to include religious
organization events in their schedules. The broadcaster is in the best position to
determine what the community it serves wants to watch and should continue to be
allowed the discretion to choose how best to fulfill its public duties in the least
burdensome way.
Another potential problem with requiring greater public interest obligations for
broadcast licensees is that compliance could be so costly that many smaller broadcasters
will not be able to afford it. These broadcasters would lose their license and the First
Amendment right to free speech would be thereby be limited.
Currently, the broadcaster has plenty of flexibility in determining the content of
its programming. More specific guidelines could reduce that flexibility. In effect, the
FCC would be dictating the content of what the broadcast licensee airs on its station,
which it clearly cannot do without infringing the First Amendment. Steps need to be
taken to ensure the greatest amount of discretion to broadcasters as to the content of their
programming.
New Requirements Should Be Phased in Over Time
Any new requirements for the broadcast licensees should be phased in over time.
Digital television is a new concept. Although success is likely, no one is sure exactly
4 Angela R. Bolton
372
how successful it will be or even if it will ultimately be successful. Any guidelines
should be phased in to reflect the acceptance of digital television in the marketplace.
A more important question is when the transition from analog to digital television
will actually be completed. Right now, people are not going out and buying digital
televisions. They are purchasing much less expensive analog televisions. They will
continue to do so until digital television sets become affordable which does not seem to
be likely to happen any time soon. The new requirements for digital television should be
phased in gradually as the television sets become more popular.
Broadcasters should not necessarily be required to do more just because they will
be able to do more. Compliance with the guidelines will be costly to the broadcasters. If
broadcasters are required to follow guidelines too early they may have less money to
spend on services in the future while they attempt to recoup their early investments.
They may also have less money to spend to perform the services they are currently
performing.
The FCC could work with the broadcast industry to develop a set of guidelines for
digital television when it is fully active. During the transition period, compliance with
the guidelines would be voluntary. The transition period would serve as a testing period
to gauge the capabilities of digital television. The FCC would then be in a better position
to analyze what digital television will realistically be able to do. It will then be able to
determine the public service obligations of the broadcasters in the digital television era
based upon more than an assumption that digital television will be a huge success that
will revolutionize television viewing.
5 Angela R. Bolton
373
The Gore Commission’ has suggested voluntary self- regulation as an alternative
to mandatory government regulation. The broadcasters could formulate their own set of
guidelines. Compliance would be voluntary but the “peer pressure effect,” also called
competition, would create an incentive for the broadcasters to follow the guidelines. I
agree with this approach while digital television is still in its infancy. However, as digital
television becomes more common, the guidelines would become mandatory for license
renewal.
As digital television evolves, the FCC, broadcasters, and other concerned citizens
may see that changes need to made. Phasing new requirements for digital television in
over time creates a mechanism for adapting to the changes and any unforeseen
consequences of the digital television era.
Enhancing Access to Television Media
An important part of the public service of television broadcasters is their
obligation to make the television media accessible to persons with disabilities. Such
persons would often not be considered in the absence of regulation. Television is a major
source of information for Americans. Disabled Americans deserve access to that
information. Any steps that can improve that access should be required.
Much of television depends upon the advertisers. After all, television
broadcasters make their money by selling advertisements. Popular shows generate more
advertising dollars than non- popular shows. Persons with disabilities are not a big focus
group for marketers. Services to provide television access to persons with disabilities
cost money without generating any return on the investment. Profit- motivated
5 The Advisory Committee on Public Interest Obligations of Digital Television Broadcasters created 6
Angela R. Bolton
374
broadcasters may want to keep this expense to a minimum. It is therefore important for
the FCC to prevent the disabled from being left out of the advantages of digital television.
Clearly, providing access to the disabled is in the public interest. It is a service
that only the television broadcasters can provide. Broadcasters are currently required by
the Telecommunications Act of 1996 to provide closed captioning for the hearing-
impaired on specific programs. 6 With digital television, the broadcasters will be able to
provide even more services.
Under current regulations, broadcasters are only required to provide closed
captioning for certain programs. Under digital television, there should be no limit to the
programs that should be closed captioned. Description services for the blind could also
be enhanced for all programs.
It is especially important that closed captioning and description services be
enhanced for political programming and other public affairs programming. For instance,
news shows are closed- captioned but the features are not closed- captioned. The viewer
who is hearing- impaired gets to learn everything the reporter says but nothing the
characters in the features say. Since digital television is supposed to be such a vast
improvement over analog television, surely it could solve this simple problem.
Another problem with closed captioning is that the fonts used are often hard to
read. Sometimes the location of the fonts on the screen interferes with the informational
captioning on the screen. The broadcaster should be required to format the fonts in such
a way that the viewer will be able to read them more clearly. The viewer should be able
pursuant to Exec. Order No. 13,038, 62 Fed. Reg. 12,065 (1997).
6 The Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56 (codified at 47 USC. 5 151, et.
seq.) (Feb. 8, 1996). 7
Angela R. Bolton
375
to change the size and text of the captioning to make it more readable. The viewer should
also be able to change the location of the fonts on the screen.
Improving services to the disabled should be a primary focus of digital television
regulation by the FCC. The disabled could all too easily be left out of the digital
revolution without the aid of the FCC.
Conclusion
Digital television promises to be an exciting and valuable resource in the future.
That future is very near. In the meantime, the FCC should proceed cautiously in
regulating the new industry. Broadcast licensees should be required to continue
performing all of their current obligations but should also continue to be allowed great
discretion in how to fulfill those obligations. Any new obligations should be imposed
gradually in response to industry changes and the FCC should continue to ensure that
persons with disabilities have the greatest possible access to the media that is available.
Such caution could help to determine the success of digital television so that it can
provide the maximum the public services.
Respectfully,
Angela R. Bolton
8 Angela R. Bolton
376
Mm 2 3 2000 To: Magalie Roman Salas, Secretary- FCC
From: Stephen E. Verotsky RI%
cc: Professor Glenn H. Reynolds
Date: March 15, 2000
Re: Docket No. 99- 360. Comment on the public interest
obligations of digital television broadcast licensees.
Dear Secretary Salas,
In response to the FCC's request for public comment,
47 C. F. R. pt. 73 (99- 3601, I want to express my views as a
law student at the University of Tennessee. I believe that
the FCC should not only ensure that broadcasters intensify
their commitment to serve the public interest but also
ensure that broadcasters will be able to compete with cable
and other multiple channel programming.
Introduction
When Congress passed the Telecommunications Act of
1996, it endowed broadcasters with a valuable commodity:
the use of the digital spectrum. In exchange for this
valuable asset, broadcasters were put on notice that they
should expect an increased obligation to serve the public
interest. The rationale for increasing broadcaster's
public interest obligations is that if broadcasters benefit
from the transition to digital television, then the
American people, who have entrusted the broadcast media
” -. .- .., ” ^ _._---“._-...-.___“ X____ I_
- -..- “-.- -l._,_- X_
377
with integrating vital public goals into a commercial
setting, should also benefit.
Broadcasting companies are expecting to profit by
switching to the digital spectrum. They are currently
making large capital expenditures by purchasing equipment,
erecting towers, and converting programming to digital
formats. However, broadcasters and many economists are not
certain what effect digital broadcasting will have on
revenues because it is hard to predict how digital
broadcasting will develop. For example, when will receiver
costs come down to appeal to a large audience; when will
digital supplant analog broadcasting; and to what extent
will broadcasters rely on a high definition signal or
multiple channel multiplexing.
Given these economic and technological uncertainties,
increasing the public interest obligations of digital
broadcasters may delay the long anticipated competition to
cable and other multiple channel programming that digital
broadcasting may bring. However, with careful attention
given to the harm that any regulation may cause consumers,
this is a risk that must be taken. Competitive forces in
the television market have had an array of harmful effects,
ranging from inadequate programming for children, to
substance- free and scandal- pervaded treatment of political
2
- .--- - - ..- ---- .-.. _I_” _.
-- -_ I-_- -_.~” - -“_ l. ll-“ ll.
378
379
issues, to news as ninfotainment. N The FCC needs to
counteract these prevailing market forces by (1) providing
adequate funding for public broadcasting, (2) providing
economic incentives to broadcasters to address local
issues, and (3) increasing the disclosure obligations of
broadcasters.
Increase Funding for Public Broadcasting
Digital broadcasting will be available to most people
in America free of charge. Unfortunately, these same
people would rather watch professional wrestling and Jerry
Springer. Broadcasters have responded to these preferences
with even more sensationalistic, violent, or prurient
programming. Although the FCC's role is not to change the
preferences of consumers, the FCC can ensure that viewers
who want educational programs for their children and public
affairs programming will have options available to them.
Rather than forcing commercial broadcasters to provide
this type of programming, public broadcasting, which has
accommodated the public interest programming needs of
America in the analog era with some degree of success,
could carry most of this "burden." With the new
capabilities of the digital spectrum the value of public
broadcasting could be enhanced dramatically. However, the
.“. .. l,.“ l. -... I-.” --..-_ ------_, l”. ll-_ ____”
380
intrinsic value of the digital signal will be of no benefit
if public broadcasters do not have adequate financial
backing. The startup costs of converting to digital
signals and providing digital programming are ten to twenty
percent higher than the costs of producing analog
programming. Although public broadcasting already receives
funding from the federal government and other private
sponsors, more funding will be needed if public
broadcasters increase the number of programs that they
offer.
Congress could have conducted a lucrative funding
drive for public television when it was deciding how to
distribute the digital spectrum, but it chose instead to
succumb to special interest groups and give away a valuable
source of potential revenue. Although I do not propose
that we "take back" the digital spectrum from broadcasters,
there are several mechanisms that could be used to increase
funding for public broadcasting. For example, public
broadcasting could be funded by (1) revenues generated from
the auction of other spectrum, including the analog
spectrum and (2) the fees generated from ancillary and
supplementary services offered by digital broadcasters.
Provide Economic Incentives for Broadcasters to
Address Local Issues in the Communities they Serve.
381
Local programming should be one of the main
requirements under which every broadcaster operates.
Although the notion that a broadcaster receives a license
to act as a trustee of the public interest is expressed in
court rulings and FCC policy, broadcasters are providing
very little programming that addresses local issues in the
communities they serve.
In a recent study conducted by the Benton Foundation,
in consultation with the Media Access Project, researchers
found that in the five television markets studied,
broadcasters provided 13,250 hours of programming but only
46.5 hours of local public affairs- l Moreover, genuine
discussion of local issues appears to comprise an even
smaller proportion programming. A recently published
survey conducted by eight universities found that, once
weather, sports and advertising were accounted for,
"government and politics" comprised only 15.3% of local
news content. 2
In light of these two studies, two questions surface.
Do people really want to know what is going on in their
' BENTONFOLJNDATION& THEMEDIAACCESS PROJECT, COMMLJNJCATIONSJNTHEPUBLJC INTEREST:
WHAT’S LOCAL ABOCT LOCAL BROADCASTING? (April 1998) (visited March 10,200O)
http::~~~ w~ v. benton. org’PolicvlTL’. ’whatslocal. htn~ l. (the study included every full power television station
in f> ve CS markets: Chicago, Illinois; Phoenix, Arizona; Nashville. Tennessee; Spokane, Washington; and
Bangor, Maine).
5
-.-.I I __- -- --,.-
382
community? If so, would they rather read a newspaper or go
online or watch the local news. Both these questions are
difficult to answer and this is the reason why broadcasters
should not be forced to air local affairs programming. If
broadcasters are forced to air programming that consumers
do not want, broadcasters will not be able to compete with
cable companies that are not required to satisfy public
interest obligations. However, this should not stop the
FCC and other government agencies from encouraging
broadcasters to cover local issues by providing them with
economic incentives. For example, if broadcasters provide
at least 25 hours of local programming per week on one of
their stations, then the revenues generated from
advertising during these hours could be taxed at a more
favorable rate. In addition, the amount of local
programming could also have a corresponding positive or
negative affect on the FCC's licensing procedures.
The FCC Should Increase the Disclosure Obligations of
Broadcasters
How do most people find out what is on TV? If they
are anything like myself, they turn on the television and
partake in what is commonly referred to as "channel
' Id. at 6.
6
-. ---“.“- ,” --....” _... ““” _,_-
383
surfing." Sometimes I stumble upon some quality
programming or programs that are "in the public interest,"
but most of the time I give up and find something else to
do. However, I really do believe that there are programs
worth watching.
The FCC could perform a great service to this country
if they required broadcasters to coordinate their resources
to produce a single weekly Internet publication that
contains detailed programming information. It is not
practical for someone to go to each broadcaster's web site
to see what they will be airing that week. Moreover, the
advertisements and other sources of propaganda that clutter
most websites and other print media obscure the information
the people should have easy access to.
The solution: (1) create a site that has a clever
address; such as www. whatsontv. com; (2) require all
broadcasters to provide information about their programs;
such as time, suggested audience, content description, and
whether the program has closed captioning or other
disability features; (3) limit the number, size, and
location of advertisements; and (4) require broadcasters to
advertise this website in a "reasonable" manner.
Requiring broadcasters to combine all of their
broadcasting information and publish it on one website may
7
---- I I -.. ___ l_ l_.___... ”
--.-_-..-.. ” -.---.-- ., .,_.
~----.-
384
385
decrease the revenues generated from their current, highly
commercialized sites. This problem could be alleviated by
allowing broadcasters to provide links to their home pages
so that people who want more information about their
favorite shows can, with the click of a button, transport
themselves back to destination capitalism.
Conclusion
Increasing the public interest obligations of
broadcasters could give a competitive advantage to cable
companies who do not have to satisfy this requirement.
This could forestall the long anticipated competition to
cable and other multiple channel programming that digital
broadcasting may bring. Consequently, the FCC could better
serve this country if they focussed more resources on
public broadcasting which does not have to respond to the
market force of ratings.
Although the FCC should focus more of its resources on
public broadcasting, the FCC still needs to ensure that
broadcasters cover local affairs by providing them with
economic incentives to do so. If the FCC simply required
broadcasters to cover local affairs this could also give
cable companies an advantage if consumers are not concerned
about local affairs or would rather get this information
386
from other sources. The FCC could also provide a great
service to this country if they required broadcasters to
create one website that contained detailed programming
information. Thank you for your consideration.
Cordially,
_
L
Stephen E. Verotsky
387
Before the Federal Communications Commission
Comments of Dationa Osborn m
Regarding the proposed ~~~ Public Interest Obligations of Television
Broadcast Licensees
Introduction and Background
In deciding whether the Commission should establish more
specific minimum requirements or guidelines regarding television
broadcasters’ public interest obligations, the Commission must first
decide what it’s objectives would be in establishing such guidelines and
whether it would benefit the public to make these new guidelines.
Current public interest programming include educational children
programs, public affairs and general educational programming. If the
commission wants to see these types of programs enhanced and
improved, and if the commission wants the programs to play an
important part of the 21St century, it will want to make the programs part
of the new opportunities that digital television is bringing.
A. A need to move from deregulation to regulation
One thing is certain, the 1996 Telecom Act specifically states that the
public interest standard is applicable to television broadcasting including
digital TV. 1 However, if regulations are made, they should be regulated
not deregulated. This has not always been the case in the
’ Telecommunications Act of 1996,47 U. S. C. 6336( d)( 1994).
388
past. The current public interest regulations are somewhat vague. The
Commission’s guidelines for local or informational programming are
neither effective nor objective . 2
Dean Burch once said in an address to the International Radio and
Television Society in 1993, that ‘neither the Broadcasters of that group
or the FCC could probably state what the specific guidelines and renewal
policies were. ”
B. Clearly Defined Guidelines will be Essential
Because of the “lightweight” handling with regards to standards and
guidelines in the past, the Commission should strive to establish clearly
defined guidelines that will be promulgated properly. This will assure
compliance by each broadcaster who expects to get their license renewed.
This is especially important for when the FCC is confronted with possible
licensee violations.
C. Postcard Renewal Is Outdated
One thing that the Commission may think about abolishing, is the
license renewal by postcard. This requirement, which was adopted in the
198Os, has also contributed to the deregulation if broadcasting.
Although they may be quick and efficient, postcards tend to undermine
the whole concept of making the public interest requirements effective.
For example, with a post card there is no room to show how or
* Broadcast renewal License: Hearing Before the House Subcomm. on Comm., 93d Cong., 1” sess., ser. 93-
36, pt. 2, at 1120 (testimony of Chairman Dean Burch).
389
when guidelines were complied with. And although broadcasters are
required to keep a file with this type of information, no one from the
Commission conducts routine checks to make sure the files are complete
or that they even exist.
Discussion
A. Stricter Regulations
The Communications Act awards short- term broadcasters’ licenses
to parties that volunteer to service the public’s interest. The Act imposes
several basic public service requirements. The broadcasters are required
to serve the local needs with community issue- oriented programming.
They are required to contribute to an informed electorate through
informational and political broadcast. And, the broadcasters are
required to serve the educational and informational needs of children.
These general requirements are good, but they should be more
detailed. This may take time and a little research. When meeting the
needs of the public, the FCC wants to be sure that the public is receiving
the benefit. Therefore, the programming should be tailored or scheduled
so that the particular audience, whether it is children or adults, is
watching the TV at that time. Effectiveness is better than quantity.
What do I mean by that statement? Well, for example, a one hour
requirement of educational programming at a time when the audience is
sure to be watching is better than a five hour requirement that is used
between 1 am and 6 am.
390
Requiring 2 to 4 hours of public interest programming for each
audience (local, adult, and children) per day at a time when the audience
for that particular program is watching, seems to be more than enough.
Anyone who watches more television than that is probably not making
good use of his or her life. Plus, we shouldn’t leave the burden on the
broadcasters to meet all of the public needs. There are other interactive
things that take place in the community that can fulfill those needs.
Using the Children’s Television Act of 1990 as a model, the FCC
could require broadcasters to serve the educational and informational
needs of children and adults with specifically designed programming.
Also equally important are the types of programs, which the broadcasters
consider educational and informational. For example, if animated
programming is used, would shows such as “Pokemon” or “Catdog” be
considered educational or would the program resemble shows like
“Barney” or “Arthur?” Even with adult programming, would the news be
considered informative? Or what about game shows like “How to be a
Millionaire?”
The FCC should be specific in what types of programming or
commercials are considered and which types of programming absolutely
would not pass.
B. Compliance
This takes us into compliance. If the Commission creates the
..- --. ._ -- “__ _. _ . ..._.” ..- ~ ~.-- -.~-
391
type of guidelines that I have mentioned, the FCC should make sure that
the licensees comply with the new guidelines. Since most of the rules
dealing with compliance are already in place, the Commission just needs
to assure that the broadcasters abide by the statue.
First, instead of using postcards, the FCC could receive
programming information to help it assess whether the public service
efforts of particular licensees are being met. The broadcaster could be
asked to keep semi- annual reports in their files, which focus in their
public service record. The file should include the current programming
used, including the number of hours and which audience it is intended
to serve. Secondly, the file should also have plans for any new
programming and changes and suggestions. The programming should
include educational, cultural, and in- depth informational programming. 3
The FCC should conduct random inspections where
representatives would go to the broadcasting company and evaluate their
public service efforts. If that process becomes too costly, the Broadcast
Company could mail in annual reports, which indicate significant
treatment of community issues, along with illustrative programs. If
nothing else, the records could be kept on disk or CD- Rom.
Other things the FCC may want to start doing more effectively is
investigating complaints by people dealing with programming or some
3 Actually, broadcasters are asked to keep a file under the present guidelines, but the files do not have to be
submitted to the FCC.
392
content feature. Having a copy of the file or access to the file allows the
Commission to address the public’s issues quicker and more effectively.
Failure to comply with these guidelines should result in non-
renewal of the license. The license renewal should be conditional upon
compliance.
C. The Unconstitutionality Argument
Along with new regulations is often someone or some group who
will oppose the regulation. A broadcaster from the National Association
of Broadcasters (NAB) stated that “clearly defined guidelines for public
service would violate the broadcaster’s first Amendment right.“ 4 However,
I feel that if the NAB really thought that the public interest obligation
was problematic, they would have opposed it much sooner than now.
The lack of strict compliance of public interest guidelines in the
past by the FCC has likely created a false sense of control among the
broadcasters. Therefore, when the Commission try to enforce the new
clearly stated guidelines, the NAB may retaliate by non- compliance or by
filing first amendment violation claims.
Neither one of these choices will be a good idea for the NAB to
exercise. First, if they refuse to comply with the guidelines, they will lose
their license renewal and there are plenty of other companies wanting to
get one of these licenses at the small price of complying with some
minimum public interest obligations. Second, going to court costs
4 Edward Fritts, Response to FCC Chairman Reed Hundt, Broadcasting and Cable, April 7, 1967, at 36.
,_---- _ - __.” _. . _*_,^ III_ .._ I ..-. __ ,. - _.-. ^“-“..- _-- -----. -
393
money and it take time and then there is no guarantee that they would
win in the end. It sounds good to say that your first amendment rights
have been violated, but how would that argument stand against a
“substantial” or “compelling” public interest need which serves an
audience much greater than a broadcast company.
The best thing to do so that no one feels threatened is the hold a
session between the FCC and the broadcaster which give the broadcaster
a chance to express their views in a face to face forum, or maybe their
needs can be met by sending in comments to the Commission on the new
proposed guidelines.
One other thing that may help is for the Commission to define
what they consider public interest programming as mentioned above. If
the Commission comes up with a liberal definition the NAB may be more
susceptible to the entire process. Other things would include the choice
of how many hours are required and the freedom to choose among both
non- commercial programs and commercial.
Conclusion
Whatever guidelines the Commission decides to use, it should also
keep its objective in mind. It shouldn’t be that difficult to consider the
NAB wants while meeting the public’s need. The NAB should feel that
they are a part of the regulation and not just a victim of it. Taking the
feelings of everyone who will be effected by this new guideline into
consideration assures that no one looses in the end.
394
To: Magalie Roman Salas
From: Nicholas J. Peterson
cc: Professor Glenn H. Reynolds
Re: Comments on Proposed “Public Interest Obligations of Television Broadcast Licensees”
Regulations
In response to the Federal Communications Commission’s request for public comments,
65 Fed. Reg. 4211, (January 26, 2000) I wish to express my views as a law student at the
University of Tennessee. As consumers of television programming, my family, myself and the
community in which we live will be directly affected by the new Digital Television (DTV) era. I
am commenting in particular on the issue of the broadcasters’ duty to provide programming in the
public’s interest, specifically children’s programming. Further, I am submitting comments on the
issue of enhancing political discourse through the use of DTV.
Introd. uction
“Television is the most influential image and information machine of American society.“ ’
This quote is most probably a true depiction of the twentieth century. Some may argue that
computers and the Internet have been, and will become the most influential. But as American
society moves further into the digital age of TV and its convergence with user interactive
capabilities, the argument becomes moot. There is no denying, however, that television shapes,
influences, and changes vital aspects of our society. Legislation regulating broadcasters dating
back to the nineteen- twenties and thirties still remains virtually unchanged today. Unfortunately
the current regulations in place fail to instruct television broadcasters regarding specific public
395
interest obligations such as children’s programming and political campaign discourse. As the
technology surrounding DTV continues to evolve, so should the requirements on broadcasters to
better serve the public’s interest,
Children’s ProPramming.
The typical American child consumes “nearly five and one- half hours of media outside
school” per day; half of that figure consists of television. 2 Currently, broadcasting networks
assert that they are complying with the three hour per week rule for children’s programming.
Special interest groups like the People for Better TV argue that three hours per week is just not
enough. But before the issues of how, when and how much children’s programming should be
available on the DTV format, I need to make a general assumption.
For the purposes of this comment, I will assume that given an option, broadcasters will
choose to multicast rather than to produce one HDTV signal. In support of this assumption, the
ABC TV Network President Preston Padden stated that ‘his company is leaning toward
multichannel digital broadcasts rather than dedicating its stations’ spectrum to a single HDTV
channel.” CBS has also mentioned that it is “eyeing multiplexing as a potential revenue source.”
And NBC indicated that it will likely broadcast in both HDTV and multicast at different times of
the day.” It is unlikely that the networks will waste precious spectrum with HDTV when four to
six video or data channels can be utilized in the same space. Based on the likelihood that
networks will multicast programs on several channels, the FCC should redefine the standards for
which the networks are required to air children’s programs,
A good starting point is to ask whether broadcasters of DTV should be required to abide
by any of the traditional public interest requirements regarding children’s programming that
2mumc* ons . . Da ‘ly, Vol. 19; Issue 222; November 18, 1999.
3John M. Hgg ins, Glenn Dickson, Broadcasting & Cable 7 “HDTV Falling Out of Favor” Vol.
127, No. 34, August 18, 1997
__._ _...._._ _, l--_ l- “-- .-._-- )_-- .l. __---. . . I
396
analog broadcasters must follow. There is no legitimate reason why broadcasters of DTV should
not be required to maintain at least the minimum requirements that have been in place for nearly
70 years. Broadcasters have received what equates to “rent- free office space - the public
airwaves.“ 4 In return for free access to the airwaves, broadcasters are required to “repay” the
American citizens by providing some public interest programming and features like closed
captioning. It should be viewed as an affirmative duty that the broadcasters have to the American
people to provide at least the minimum standards set forth in the Telecommunications Act of
1996, even on the new digital spectrum.
The next step is to ask whether increased, and more specific standards of public interest
programming (specifically children’s and educational shows) are permissible in the new spectrum
of DTV. Of course the broadcasters answer adamantly in the negative. Broadcasters argue that
the First Amendment applies to them just as it does to the press, and forbids the government from
mandating the programming aired on their channels. “However, because broadcasters are
licensed to use a scarce public property, the Supreme Court has consistently ruled that with
regard to the public airwaves it is the First Amendment rights of the viewers, not the broadcasters,
which is paramount.“ 5 Others argue that if the broadcasters want to be treated like the press, they
should pay for the digital spectrum that they are using. Furthermore, the constitutionality of clear
and concrete public interest obligations was upheld in 1997 in Time Warner Entertainment Co. vc
m. 6 The District of Columbia District Court held that the educational and informational
programming requirements were constitutional for at least two reasons. First, the spectrum in
which broadcasters air their programs is scarce and the public is therefore entitled to condition its
use. And second, a specific public interest requirement may be justified as payment in kind for the
use of the public spectrum. (see footnote 6) Therefore, it is clearly permissible, not to mention
“http:// www. bettertv. net/ takeback. html
5http:// epn. org/ prospect/ 22/ 22suns. html
6Reed Hunt, oadcastinp. Br 7 “First Things First” Vol. 127, No. 9, March 3, 1997
397
desirable that the FCC place new and more specific standards on broadcasters of DTV regarding
children’s programming.
One problem with setting firm requirements on DTV broadcasters that choose to multicast
is whether to provide for children’s programs on all the channels (potentially 6 channels or more
per network), or treat the network as one single unit and apply programming requirements that
way. While it might seem easiest to simply apply the programming requirements equally “across
the board”, one must take into account the fact that many multicasted channels will not lend
themselves to video formatted programming. Such channels include those that the broadcasters
will use for datacasting or e- mail. In fairness to the broadcasters, the three hour
educational/ children programming requirement could potentially create serious problems when
interjected into a channel which is dedicated to providing e- mail service to customers. However,
in fairness to the public, the broadcaster should still be held accountable to provide public interest
programming for the free use of that spectrum.
What I propose can be classified as somewhat of a compromise between the two. For the
broadcaster who chooses to multicast, the educational and children’s programs could be aired on
DTV channels which are more conducive to video broadcasts. Each of the multicasted channels
should be counted as “one” spectrum unit, which is required to broadcast programs in the public’s
interest. But where a broadcaster can demonstrate that airing children’s programs on certain
channels (such as data channels) is a substantial burden, the broadcaster may have the option to
air the programming on video DTV channels. For example, if CBS chose to multicast its DTV
signal and broadcast 6 different channels (4 video and 2 data), every channel should be
responsible for airing at least the minimum 3 weekly hours of children’s programming. When
considering the 2 data channels, the required 6 weekly hours of children’s programming could be
distributed among the remaining 4 video channels, provided that CBS could show a substantial
burden in airing the shows on the data channels. The outcome is fair and equitable to both the
public and networks. The public would continue to receive a satisfactory level of children’s
_.
398
programs, while the broadcasters would still air the same hours of children’s programming per
week, per channel as the analog system.
Enhancing Political Discourse
In this portion of the comment, I will provide suggestions pertaining to the use of DTV to
enhance the political discourse and the democratic election process in America. It is safe to
assume that the vast majority of Americans would benefit from enhanced coverage and
accessibility to the political process and its candidates. Television (including DTV) is, and will
continue to be one of the most utilized formats in which the American population receives its
information on candidates. DTV provides a new forum with greater possibilities in which to
engage candidate debate and audience participation.
New and more stringent regulations regarding DTV air time allotments for political
candidates however will not enhance political discourse. While more air time for candidates and
easier access to the airwaves would likely benefit the public, there is little guarantee that the
majority of DTV consumers will even watch it. Broadcasters have said that they “don’t hear a lot
of clamoring from the public for more time for politicians.“ 7 It does seem clear though that
reform in some manner regarding the requirements on broadcasters is needed to further the
political discourse coverage on DTV in the future.
The debate on whether to require broadcasters to provide free air time to political
candidates has been raging for several years. One of the possibilities for a solution would be to
formally require broadcasters who are granted DTV licenses to provide a minimum amount of
free air time for political candidates. The “Gore Commission” has recently addressed the issues in
this debate. In fact, the Commission has said that at the very least, the FCC “should consider the
7Kathy Chen, The Wall Street Journal ‘) ‘Regulators Weigh How to Expand Standards for Digital
Broadcasting” December 15,1999
399
committee’s recommendation that broadcasters voluntarily give candidates five minutes of free air
time in the last month of an election campaign.“* And in early 1998, in President Clinton’s State
of the Union Address, he called for requirements on TV stations to provide free air to political
candidates. 9 These suggestions from the Commission and Clinton have come under heavy attack
from both the broadcasters and Congress.
First, broadcasters rightly argue that additional public interest requirements, especially
those that require free air time for candidates, are unnecessary and that there is no compelling
reason for saddling the industry with additional obligations. Requirements in the current Act
already provide for lower advertising rates for political candidates. And in compliance with the
Act, the broadcasting industry currently offers “political candidates advertising at the lowest
rates.” (see footnote 8) Broadcasters, on their own accord have offered free air time to political
candidates in the past. During the last election cycle, “broadcasters gave $148 million in free
time” to political candidates for advertising. lo However, $15 million of that free air time was
turned down by the candidates. “The dirty little secret about free time is that when broadcasters
offer it, it’s often turned down.” (see footnote 10) Furthermore, broadcasters assert that
requirements for free air time on DTV channels are not needed “particularly in a time when
alternative media outlets are exploding”, like the Internet. (see footnote 10)
The simple fact is that any formal minimum requirement for free air time is unnecessary. It
is not required in the current Act, and candidates aren’t even taking advantage of the free air time
that the broadcasters currently offer voluntarily. Taking such an affirmative step would result in
at least one problem. What do you do with the broadcaster who does not fill the minimum air
time with political discourse, not because the broadcaster chose not to do so, but because
candidates chose not to take advantage of the free time to advertise on TV? Is it the
*Jim Landers, Knight- Ridder Tribune Business News, “Digital Broadcasters May Have to Give
Candidates Free Time” December 16, 1999
9Kathy Chen, The Wall Street Journal , “Regulators Weigh How to Expand Standards for Digital
Broadcasting” December 15,1999
10Brooks Boliek, Hollywood Reporter, “FCC Begins Public Service Work” December 16,1999
400
broadcaster’s fault for not airing the minimum campaign advertisements, or is it the political
candidate’s fault for not taking full advantage of the free air time? The requirement will very
likely result in an accountability problem.
Next, in addition to the “unnecessary” argument, broadcasters, and in particular the NAB,
maintain that free air time requirements will not make for better campaigns. (see footnote 10)
This argument stands up best with a simple analogy that functions under the fundamental
economic principle of supply and demand. For example, we all know that exercise is good for us,
and there is no dispute that if the majority of the population would exercise, we would be happier
and healthier. Now assume, based on this fact that Congress passes a statute that requires every
exercise equipment manufacturer in America to produce some minimum number of free workout
videos to the American public. Just because so many workout videos are now available does not
necessarily mean that everyone, or even a majority will take advantage of the videos, much less
use them. The regulation will result in many unused videos that heavily outnumber the demand
for such videos. The same goes for placing minimum requirements for free air time for political
candidates. Just because the rule provides free time for the talking heads on the DTV screen does
not guarantee that anyone will watch them, or that the candidates will make use of the “free air”.
Another of the possibilities, and the one I endorse, is for the FCC to suggest voluntary
DTV industry standards for free air time coverage for political candidates. Generally,
Broadcasters have been much more receptive to providing voluntary free air time for political
discourse. In response to the proposition of statutory mandates on air time for political
campaigns, Dennis Wharton of the NAB said that “the opposition comes when you turn to federal
mandate.“ l l Voluntary standards could have a sweeping effect on broadcasters, especially when
reminded that they do indeed occupy and to a great degree control a scarce commodity with
1 ‘Kathy Chen, The Wall Street Journal 7 “Regulators Weigh How to Expand Standards for Digital
Broadcasting” December 15,1999
401
estimated values in excess of $70 billion per license, essentially for free. I* Further, suggesting
voluntary standards would result in an equitable “middle ground” and most networks that
currently offer free air time to candidates will likely continue to do so. In addition to suggesting
standards for broadcasters to voluntarily provide free air time, it also makes good sense to
continue the regulations under the current Act that require broadcasters to charge candidates a
reduced rate for advertisements.
Once again, what I propose here can be classified as a compromise for both the public and
the broadcasters. DTV broadcasters should maintain the current public interest standards that
apply to analog stations, such as reduced advertising rates for political candidates. In addition,
the FCC should suggest voluntary industry standards for providing free time for political
discourse. The result would be a satisfied public that receives just the right amount of politics and
is not “overdosed” with campaign advertisements. In addition, the public would have access to
the voluntary industry standards that the FCC sets by which to measure broadcasters’ compliance.
Lastly, broadcasters bear no additional unfair financial burden as they would if mandates required
them to involuntarily give away valuable air time.
Conclusion
In summary, I feel the public still deserves to be repaid for allowing broadcasters to
maintain free air waves. However, I see no need to substantially increase those requirements on
broadcasters. Through some compromise and minor modifications, analog broadcasting
requirements can be translated equitably to DTV. The broadcasters who multicast should be
responsible for providing the three hours of children’s programming per week, per channel. If it
can show substantial burden to air the children’s shows on some channels, the broadcaster may air
l* Jube Shiver Jr., Los Angeles Times, “FCC Weighing Free TV Time for Candidates” December
16, 1999
_~. _ _ . _ ;;. . -----~---
402
the shows on other channels more conducive to video programming. Furthermore, the FCC
should only suggest industry standards regarding voluntary free air time for political candidates.
Changes in the rule, structured as I have suggested, will result in fair and equal treatment for both
the public and broadcasters.
403
To: The Honorable William E. Kennard, Federal Communications Commission
From: Nichole D. Bass
CC: Professor Glenn Harlan Reynolds
Date: March 17,200O
Re: Public Interest Obligations for Broadcasters Changing to Digital Technology
Dear Chairman Kennard,
In response to your Notice of Inquiry, MM Docket No. 99- 360, (December 15,
1999) I want to express my views as a law student and a consumer of digitally televised
media through DirecTV. I support the transference of the current analog public interest
obligations of broadcasters to digital broadcasters, and I support further obligations that
may be necessary due to new technological advances. One such area that should be
considered because of advancements in digital technology is that of invasion of privacy.
Introduction and Background
On December 20, 1999, the Federal Communications Commission published an
advance notice of proposed rulemaking regarding potential changes in broadcasters’
public interest obligations as they transition to digital transmission technology. The
Commission has received proposals of requirements for consideration, namely from the
President’s Advisory Committee on the Public Interest Obligations of Digital Television
Broadcasters (“ Advisory Committee”) and from People for Better TV. The Advisory
Committee released its report on December 18, 1999, in which they proposed that many
of the same analog standards should apply to digital television in a voluntary self-
regulation scheme supplemented by minimum public interest obligations to be regulated
404
by the FCC. ’ People for Better TV assert that “the Federal Communications Commission
must adhere to the mandate of the United States Congress and clearly establish public
interest obligations for digital broadcasters,” citing the Telecommunications Act of 1996,
as showing that public interest obligations extend to digital transmission technology. 2
People for Better TV and the Advisory Committee fkrther assert that this additional
spectrum given to digital media broadcasters is a gift that could have been auctioned by
the government to acquire fimds for public interest needs. 3
The Commission was interested in how broadcasters can best serve the public
interest as they transition to digital transmission technology. In particular, the
Commission desired comments on whether and how existing public interest obligations
should translate to the digital medium, and whether the Commission should adopt any
different requirements for DTV broadcasters regarding Disaster Warnings. I am pleased
to respond.
Briefly, the current public interest obligations for analog broadcasting should
transfer to digital broadcasting. Because of this new technology, lkrther requirements
become necessary to ensure protection of the public interest in areas such as the right to
privacy. The implications of pinpointing a home for a disaster warning4 are deserving of
consideration and regulation.
’ The Gore Commission Report on Public Interest Obligations of Digital Broadcasters: Sel$ Regulation and Increased Flexibility, by James M. Burger, Esq. and Todd Gray, Esq.
www. di~ italtelevision. com/ lawl99p. shtml.
2 People for Better TV- Petition, _www. bettertv. orp/ petition. html. 3 The Gore Commission Report on Public Interest Obligations of Digital Broadcasters: Self- Regulation and
Increased Flexibility, by James M. Burger, Esq. and Todd Gray, Esq. www. digitaltelevision. comAaw199p. shtm1, and People for Better TV- Petition,
www. bettertv. org/ petition. html
2
405
Discussion
Under the regime proposed by the Advisory Committee, six obligations should be
regulated by the FCC: (1.) disclosure of public interest activities by broadcasters, (2.)
voluntary standards of conduct, (3.) minimum public interest requirements, (4.)
improving education through digital broadcasting, (5.) multiplexing and the public
interest, and (6.) new approaches to public interest obligations in the new television
environment. 5 Some members of the Advisory Committee support a kind of “pay- or-
play” model in which broadcastenare given a choice of either adhering to these minimum
public interest standards or paying a fee which would be used toward public interest
needs6
Current Obligations with Flexibility for Future Developments
The current requirements, as noted in the six aspects above, should be
implemented with special consideration and flexibility for htture concerns. These
obligations that current licensees now have should transfer to the digital transmissions:
providing coverage of issues facing their communities and place lists of programming
used in providing significant treatment of such issues in their public inspection files
(consideration of making it available on the intemet is an example of the flexibility
needed for digital media), providing political broadcasting with equal opportunities,
providing children’s educational and informational programming under the Children’s
Television Act of 1990, restrictions of “indecent” programs during certain times,
providing closed captioning, having equal employment opportunities, providing
4 Proposed Rules, Federal Communications Commission, 47 CFR 73, MM Docket No. 99- 360,65 FR 4211,4213 (Janua1y26,2000).
5 Charles Benton’s letter to FCC Chairman Kennard, www. benton. or& PIAC/ cbl03099. html. ’ Id.
3
406
sponsorship identification, and regulating advertisements during children’s
programming. 7 More access and accountability to the public can only enhance and focus
attention on what the public really wants and needs. Measures such as making
information available for discussion via the intemet would serve much the same purpose
as these comments serve in rule- making procedures.
“Pay- or- Play” Model
While the “pay- or- play” model seems tidy and expeditious, relieving digital
broadcasters of this duty will only lessen the public’s awareness of diverse ideas and
discourse. Without regulation, digital broadcasters are allowed to control the flow of
ideas by replacing educational programs with advertisements and commercial programs.*
The alternatives do not serve as substitute goods because the stations used for
educational, cultural, and informational programs would be reduced to a pay- per- view
type of situation’ or would be perceived as inferior or cerebral just as many perceive the
current analog public access stations such as public access on cable or PBS. “Television
is the primary source of news and information to Americans.. .children spend far more
time watching television than they spend with any other type of media.“‘* With a
responsibility this prodigious, surely the networks and broadcast executives are not
entrusted to dutifully tend the minds of the American public. These same media leaders
make daily decisions and deals that sell airtime to corporations for advertising in order to
’ Proposed Rules, Federal Communications Commission, 47 CFR 73, MM Docket No. 99- 360,65 FR 42 11,421l (January 26,200O).
’ A Consumer Perspective on Economic, Social, and Public Policy Issues in the Transition to Digital Television: A Report of the Consumer Fe& ration of America to People for Better TK by Mark Cooper,
www. bettertv. ordconsumerperspective. html. 9 Id.
lo Proposed Rules, Federal Communications Commission, 47 CFR 73, MM Docket No. 99- 360,65 FR 42 11,42 11 (January 26,200O).
4
407
keep the organization in the black. These are the people who run a for- profit company. I
am sure there are many amiable, responsible people in these leadership roles, but as with
any hmnan, it is more difficult to see your own interests gored rather than those of the
invisible, faceless public’s.
Invasion of Privacy Concerns
“The Advisory Committee Report explains that digital technology will provide
innovative and new ways to transmit warnings, such as pinpointing specific households
or neighborhoods at risk, and suggests that DTV broadcasters take advantage of these
technological advances.“ ’ ’ Certainly any sane person would desire to promote the health
and general welfare of the public by alerting possible victims that a hurricane, flood, or
blizzard is on the way to their home or neighborhood. However, the concern should lie
with the implications of this pinpoint warning.
“A program can also be non- television data. Using ‘opportunistic’
or left over bandwidth, broadcasters can transmit data over the air.
What kind of data? Web content, stock reports, electronic coupons
that a computer printer could print out, or even a telephone directory., .
data can be television, non- television data, or a combination of both.“‘ 2
This area is deserving of regulation especially in light of the recent concerns with
intemet “cookies” that trade information about intemet users every day without their
knowledge or permission. If left unchecked, corporations will have the capability to buy,
sell, and trade consumer information and profiles gained from this new digital
” Id. at 4213.
408
transmission media without the consumer’s consent or knowledge. 13 “The transformation
of advertising is driven by two characteristics of the new advertising medium- the
immediacy of the purchase and the targeting of the message. Interactive digital networks
create the possibility of generating the information necessary to identify individual
preferences and tailor the message.. . the result is ‘direct mail on steroids”‘ 14 All of the
increased costs associated with the transition to digital television (building new digital
facilities) will push the executives to sell even more advertising; however, the need to be
cost efficient will spur the information acquisition that is available through the digital
channels in order to target individual consumers and exploit these avenues. 15
Furthermore, as the programming and advertising become individualized and targeted for
selling, the average consumer is “disarmed” and the “ability to distinguish between the
advertisement Tom the entertainment and to exercise informed choice is
undermined. ..“ 16
The American Civil Liberties Union has expressed concern for privacy as well.
“Your right to privacy.. . is under unprecedented assault.. . from the private sector interests
that want access to intimate information about you.. .“ I7 In a 1994 study, U. S. computers
I2 What is Digital Television? Consumer Information Page, www. di& altelevision. com/ what. shtml. The speed at which this information can be transferred is “346 times that of a 56k modem.” “Microsoft Word
could be transmitted within five seconds.” Id I3 “. . .the single digital channel provided to each station can be used.. . for downloading of data for
computers or other interactive and new services. It is at the broadcasters’ discretion ass to how it uses it digital channel.” Digital Television, (November 2, 1999), www. fcc. nov/ mmb/ vsd/ files/ descrip. html.
‘4 A Consumer Perspective on Economic, Social, and Public Policy Issues in the Transition to Digital
Television: A Report of the Consumer Fe& ration of America to People for Better TV, by Mark Cooper,
www. bettertv. orp/ consumerperspective. html. (The result is (1) an ability to click through for immediate purchases, (2) in response to digitally inserted advertising, (3) targeted at demographically compatible
viewers identified by detailed information on viewing patterns and past purchases, (4) that is embedded in
programming suggested by an intuitive programming guide and/ or restricted by affiliate relationships.) I5 Id
I6 Id.
I7 Defend Your Data: What They Do Know Can Hurt You, www. aclu. orp/ privacy/.
6
409
traded information of every man woman, and child an average of five times every day. l8
If the FCC does not actively protect the American public at this early stage in digital
television development, then an uncontrollable situation similar to the intemet is likely to
occur. Children are especially vulnerable to targeted ads. To some extent this already
happens when toys are advertised during children’s programs, but when the media
becomes so fluid and targeted that the children can no longer discern the Pokemon show
from the Pokemon advertisement, then we are moving toward a predetermined
brainwashing of our people. I submit that this is not in the public interest to allow
unfettered access to private information through new digital technologies, but that it is
only in the economic interest of the executives and corporations that received this free
“gill” from our own government. I further submit that the FCC would be wise to protect
the Constitution by regulating the use and access of broadcasters into the private realm of
the home.
Conclusion
For the reasons set out above, I support proposed regulation transfers from the
analog obligations to digital obligations for the public interest. I propose that flexibility
is needed to address future needs as they may arise. My concern is that digital
broadcasters will commandeer information about private individuals without their
consent and use that information for economic gain through specially engineered
advertising and selling of that information. A moratorium on information would be
” Privacy in the Information Age: Some Thoughts for US, Policymakers, by Fred H. Cate, www. law. indiana. edu/ webinit/ cate e.. .m/ privacy in the information age. html. (Among details regularly
collected are: health, credit, marital, educational, and employment histories; times and telephone numbers of every call you make and receive; the magazines you subscribe to and the books you borrow form the
library; your cash withdrawals; your purchases by credit card or check; your email and telephone messages; and where you go to on the World Wide Web. Cate citing James Gleick, Behind Closed Doors; Big
Brother is Us, IV. 1 Times, Sep. 29, 1996, at 130.)
7
410
drastic, but certainly the broadcasters should be required to affirmatively gain individual
consent in an open and obvious manner before gaining access to private details. Finally,
a check should be made to determine whether or to what extent this already exists, and in
doing so, remedy the problem by using the regulations to retroactively apply, ifpossible,
or to end the misappropriation. l9 Thank you for your time and consideration.
Regards,
Nichole D. Bass
I9 I am a subscriber to DirecTV, and I have always wondered why the representatives tell me that my system will not work if the phone cord is not plugged into my receiver at all times. I know that it works
fine without the phone cord attached. I suspect that the phone cord is useless in receiving a signal from a satellite, but that it is actually for another reason.
8
411
Richard T. Scrugham, Jr. - 3/ 15/ 00
To: Federal Communications Commission
From: Richard T. Scrugham, Jr.
cc: Professor Glenn H. Reynolds . MAR 2 3 ZU@
Date: 3/ l 5/ 00 s’ccAAAK/# f& f
Re: Comments on Proposed “Digital Television” Regulations
Dear Federal Communications Commission,
In response to the FCC’s request for public comments, 65 Fed. Reg. 4221,
(January 26, 2000), “Public Interest Obligations of Television Broadcast Licensee,” MM
Docket No. 99- 360, FCC 00- 390, I want to communicate my views on the new era of
digital television and the responsibilities of the broadcasting industry. I am a graduate
student who hopes to one day have a family and children of my own. I believe that the
federal government should hold the entertainment industry accountable for its public
interest obligations.
Introduction
Congress has already expressed its concern for the content and quality of
children’s television by passing the Children’s Television Act of 1990. In attempting to
legislate what was broadcast into the living rooms of American families, Congress was
recognizing what most parents know already - that their children are significantly
affected by the medium of television. A 1999 survey by the Annenburg Public Policy
Center found that children in the U. S. spend an average of 4.35 hours per day in front of
a screen of some kind (watching television, playing video games, or on the computer).
The same survey also found that more 1 O- l 7 year olds recognized the Simpsons (91%),
I__ I -. _“_, “-_ . ._ .,_ .-
412
Richard T. Scrugham, Jr. - 3/ 15/ 00
Joe Camel (69%), Dennis Rodman (69%) and the Budweiser frogs and lizards (67%)
than knew the name of the Vice President of the United States (63%). ’
Recommendations
With the obvious influence that television has on our nation’s youth, I am writing
in favor of several recommendations that should be incorporated into the FCC’s new
regulations regarding the public interest requirements of broadcasters as they affect
children. The first area that the FCC should address is the actual content of the
programs produced by the entertainment industry. The level of gratuitous violence,
sexual situations and innuendo and overall moral decay in many of the television
programs being produced today is frightening and a matter of concern to any parent.
Major studies confirm that television programs encourage negative values, such as
disrespect for one’s parents, and dangerous practices, such as early sexual
promiscuity.* The culture of violence that America finds itself in today has not been
spurred on by the National Rifle Association or the proliferation of handguns, but by the
de- sensitizing of America’s children to violence through television.
I do not believe that the FCC should or could eliminate all violence, sex, and
adult situations from broadcast television. However, your agency could do much to aid
the parents of America through several important steps. First, I would advocate an
improved mandatory “ratings system” that all broadcasters must follow in order to
qualify for a FCC digital television license. The current voluntary structure is unhelpful
to parents and unequally enforced across the industry. Several networks, including
’ “Media in the Home 1999: The Forth Annual Survey of Parents and Children”, April 20 - May 18, 1999,
Annenberg Public Policy Center, http:// www. appcpenn. org/ kidstv99/ survey5. htm. [Complete Report]
’ “Children’s Television Programming,” Federal Communications Commission Fact Sheet, April 1995,
http:// www. fcc. gov/ Bureaus/ Mass_ Media/ Factsheets/ kidstv. txt.
2
413
Richard T. Scrugham, Jr. - 3/ 15/ 00
NBC and BET, have publicly refused to use the content ratings in the labeling of their
shows. 3
The current voluntary system of ratings (TV- Y, TV- Y7, TV- G, TV- PG, TV- 14, TV-
MA) is inadequate to give adults a true idea of what their children might be exposed to
during a particular program. As a remedy, I would strongly propose a stricter content
information structure, which lists not only a general rating, but also specific guidelines
about the nature of the program. I support the recommendation of People for Better TV,
in which it argues that broadcasters should provide the public “much more information
from a variety of independent sources, about the nature (such as violent or sexual
content) of the programs being broadcast, as they are being broadcast. This should
enable parents to screen out programs they do not want in their homes.” 4 Instead of
flashing up a cryptic rating in the first 30 seconds of a program, broadcasters should
display specific content information, such as “V” for violence, “S” for sexual content or
“L” for foul language, during the show itself. In this way, a parent that missed the
beginning of the program could still monitor what their children might be watching.
There is an alternative to this “on the screen during the show” method of viewing
the content information. With the new technology opportunities that digital television
promises, I believe it would be very simple to create a system in which a parent could,
with the push of a button, display this information on the screen itself and get a full
report of the content of that specific program. This would be an acceptable option,
which would still give parents a way to obtain quick, reliable information about what
exactly their children were viewing.
3 Annenberg Survey, supra, p. 27.
4 People for Better TV, Recommendation: A Content- Based Ratings System, 1999,
http: Nwww. bettertv. org/ rec5. htmI
3
414
Richard T. Scrugham, Jr. - 3/ 15/ 00
The second area the FCC should address is the amount and quality of children’s
programming that is actually being broadcast. In the 1990s Congress adopted the
“Three Hour Rule” in which broadcasters were required to show a minimum amount of
programs geared toward children. This was a commendable guideline, however the
industry has been recalcitrant even in this modest requirement, as the following quote
from the Benton Foundation suggests:
“The National Association of Broadcasters (NAB) defines children’s educational television as ‘programming originally produced and broadcast
for an audience of children 16 years of age and younger which serves their cognitive/ intellectual or social/ emotional needs. ’ As examples of
shows that fall within the NAB definition, Dr. Kunkel points to ‘America’s Funniest Home Videos, ’ ‘Biker Mice from Mars, ’ ‘Bugs and Friends, ’
‘Mighty Morphin Power Rangers, ’ ‘Woody Woodpecker, ’ ‘X- Men, ’ and ‘Yogi Bear.“ ’ 5
More guidance should be given to broadcasters about the type of programming which
would qualify as “children’s television” and satisfy any minimum requirement which the
government would impose. Some type of an independent council could be assigned the
task of reviewing what is being produced by the entertainment industry and whether it
actually passes FCC standards for educational and developmental quality.
In addition to the quality of the shows being broadcast, the industry should also
focus on when the shows are being aired. Very little children’s programming is currently
shown during the prime- time hours of between 7pm and IOpm. “During this time the
highest percentage (between 25 and 45 percent depending on age) of children are in
the audience, but almost the lowest percentage (6 percent) of programs designed
specifically for them air.” 6 It is understandable, from an economic perspective, that
broadcasters would have more of an incentive to neglect children’s programming in
5 Benton Foundation, “Children’s Television Programming: The FCC Gives Teeth to the Children’s
Television Act of 1990”, 1996, http:// www. benton. org/ Policy/ TV/ kidstv- sum. html.
6 Annenberg Survey, supra, p. 28.
4
415
Richard T. Scrugham, Jr. - 3/ 15/ 00
favor of adult shows, particularly during the prime time hours. There are more adults
watching TV and they represent the majority of the consumer buying power. These
adult viewers attract the advertisers, which in turn pay the broadcasting industry.
However, simply recognizing that the industry has an economic motivation to
cater to an adult audience does not justify a neglect of broadcasters’ social
responsibility to the large numbers of children watching television during the evening
hours. With the advent of new technologies, especially the “mulitcast” options under
high- definition television, or the “multiplex” options under digital television, the
broadcasting industry will have more choices. I believe it would be reasonable to
require broadcasters to include at least one channel of a multicast signal that just
showed programming appropriate for children.
In reviewing the comments of the President’s Advisory Committee on the Public
Interest Obligations of Digital Television Broadcasters, I noticed that some broadcasters
were advocating a change to the current system of public interest requirements. This
change would entail the adoption of a “pay or play” model in which broadcasters would
be given the choice of maintaining the existing regime of their public interest obligations,
or of paying a share of their revenues to bypass those obligations. ’ This suggestion
reeks of corporate irresponsibility and should be rejected out of hand. The television
industry should not be allowed to escape its social obligations to the American public.
This is especially true in light of the fact that the entire industry received a tremendous
windfall when Congress in 1996, after intense lobbying efforts by the National
Associations of Broadcasters, gave away the use of additional broadcast spectrum for
digital television at no extra charge.
5
416
Richard T. Scrugham, Jr. - 3/ 15/ 00
By obtaining the use of this additional spectrum rent- free, the broadcasting
industry received an estimated $40 billion worth of corporate welfare from the United
States government. In comparison, from 1993- 1996, the FCC auctioned off the rights to
the use of non- broadcast spectrum to the cellular phone industry. The proceeds of
these auctions raised over $19 billion. 8 After receiving such a valuable public property
right, the broadcasting industry, represented by the NAB, has no right to complain about
the minimal public interest requirements that are currently or might be imposed upon it
by the FCC or another federal agency. The American people appear to solidly support
these requirements. In a December 1998 national survey, the firm of Lake, Snell, Perry
81 Associates asked over 1150 adults the following question: “Do you favor or oppose
requiring broadcasters to meet certain public obligations like more children’s educational
programming and local programming in return for free access to the new public
airwaves to provide digital television ?” Over 80% of the respondents were in favor of
requiring broadcasters to meet these obligations. ’
In addition to more and better programming for children, I believe that the
television industry should not grossly exploit the susceptibility of young children to
commercial advertising. This is counterproductive to the goal of developing our nations’
youth mentally and emotionally. I support the ideas of People for Better TV when it
7 President’s Advisory Committee on Public Interest Obligations of Digital Television Broadcasters,
“Recommendation 10: New Approaches to Public Interest Obligations in the New Television
Environment,” http:// www. benton. org/ PIAC/ reclO. htm.
* Center for Media Education, “Broadcasters’ Oft- Ignored Public Interest Obligations,”
http:// www. cme. org/ broad. html
’ Lake, Snell, Perry & Associates, Dec. 1998, “Education & Digital Television: Seizing the Opportunity to
Realize the Medium’s Potential - A National Survey conducted for the Benton Foundation,”
http:// www. benton. orgmelevision/ edtv. html.
6
,.. _ ---_.. ,_.. ..__ ----.---I .-- -I -~
417
Richard T. Scrugham, Jr. - 3/ 15/ 00
recommends that “digital broadcasters be limited to no more than four commercials, no
more than sixty seconds long, per hour during children’s programs.” lo
Conclusion
In the Telecommunications Act of 1996, Congress wrote, “Nothing in this [Act]
shall be construed as relieving a television broadcasting station from its obligation to
serve the public interest, convenience and necessity.” ” In forming new regulations for
the era of digital television, the FCC should take this charge from Congress seriously
and should hold the broadcasting industry accountable to its public interest obligations.
I believe the changes I have advocated, a) additional content description of all television
programming, b) better quality children’s shows at more convenient hours of the day
and c) a limitation on commercial advertising during children’s television programs,
would be effective ways to enforce these obligations. The FCC should remember that
its customers are not the members of the National Association of Broadcasters but the
American people who fund its budget and whose representatives authorize its continued
existence. The Supreme Court expressed this succinctly in a 1969 decision: “It is the
right of the viewers and listeners, not the right of the broadcasters, which is
paramount.” ‘*
Thank you for your consideration.
Sincerely,
Richard T. Scrugham, Jr. Knoxville, Tennessee
lo People for Better TV, Recommendation: Limits on Commercials During Children’s Programs, 1999, http:// www. bettertv. org/ rec2. html.
” 47 U. S. C. 5 251, et. seq. (1996).
l2 Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969).
7
418
March 17, 2000
Proposed Rules Comment
Brian Molde m m& f
William E. Kennard
Chairman
Federal Communications Commission
445 12th Street SW Room 8B- 201H
Washington, D. C. 20554
Re: MM Docket No. 99- 360
My comments are directed towards the notice of inquiry
and notice of proposed rulemaking concerning the public
interest obligations of television broadcasters as the
switch is made from analog to digital television. Iama
third year law student at the University of Tennessee
College of Law, and I am making these comments as part of
the Administrative Law course that I am currently taking.
Because I believe that the advent of digital television is
a unique chance for a re- working of the FCC's regulation of
broadcasters and because I believe that the television
industry should be subject to more stringent control, these
comments argue in favor of more regulation. Specifically,
these comments will address the need for diverse interests
in the digital television market and for more regulation to
open the digital television media to more political
discourse.
1
I.-.-_- . . -... II ..- - --. --
419
The FCC's goal of serving the public interest, or
prompting the broadcasters to serve this goal, can only be
achieved by presenting a wide variety of television formats
and programs on the public airwaves. This is true simply
because the public interest is such an amorphous concept,
with few clear markers outlining what is the public
interest and what is not. For that reason, and to add to
the type and variety of television, the first need is to
expand the ownership base of television stations so that
broadcasters are a better reflection of the public, and
thereby the public interest.
A. THE NEED FOR DIVERSE DIGITAL TELEVISION OWNERSHIP
Television is without doubt the most important source
of information for the majority of Americans. It is our
source of news, political debate, and entertainment.
According to People for Better TV and the Roper News
Service, " 93 percent of Americans watch a network
television program in the course of a week, and 69 percent
of Americans say TV is the most trusted source of
information." l Americans are dependent upon accurate
information from television because it is such an important
source of news.
'See http:// www. roper. com/ news/ content/ newslO. htm
2
420
The Communications Act of 1996 granted to all existing
broadcasters an additional mu32 of spectrum to begin
digital programming. It did not provide any additional
spectrum for people who were not owners of operating
television stations. In fact, although the FCC claims that
digital television will use less of the spectrum of radio
waves than analog television currently does, the agency has
not stated that the surplus spectrum will be available for
new operators of digital stations. 2 This is contrary to the
public interest goals of the Commission. Only by
encouraging station ownership by smaller operators will the
emphasis in programming be adjusted to the community level.
Large communication corporations3 which do not cater to the
individual needs of communities dominate the current
system. Therefore, much of the public interest programming
that takes place on television is not directly related to
the public served by the television station in their
community. Moreover, broadcasters are no longer required
to determine community needs, adhere to a Fairness
Doctrine, or any code of conduct. 4 The relaxation in
control of television broadcasters has developed a system
2 See http:// www. fcc. gov/ mmb/ pr# dtv/
3 See Letter to Chairman Kennard from Lowell W. Paxson, Chairman, Paxson
Communications Corporation, dated February 11,200O.
4 See http:// www. bettertv. org/ background. html
3
421
in which television broadcasters are no longer required to
serve the public interest as a primary goal of television
broadcasting. Part of this decline may have to do with the
fact that the number of stations that one entity may
control is significantly more than it was when the
Communications Act of 1934 was passed.
As a result, the public interest has suffered.
Television broadcasters are less concerned with what the
public needs and are rather determined to dictate to the
public what it will see. Advertising revenue has become
the driving force behind the television market, and
television programs have become increasingly severe in
order to attract attention and viewers. One need only look
at the prices charged during the Super Bowl to understand
what the actual forces are in the television market.
Re- enforcing the goal of serving the public interest
while expanding the base of ownership of digital television
stations would have numerous benefits. More competition
among owners for markets would drive the owners to
concentrate on distinct markets in order to capture their
viewers. Television stations with the technology of
digital television would be able to present programs in
languages other than English and would also be able to
broadcast more and better close- captioned programs. Local
4
,. - ” __ II.____ I_.., .,.. “._----*.. l.. ll~. _l_“-- ,.-.
-~..-__ I_-
422
news programs would also cater to these distinct markets by
focusing on the issues central to those communities. The
increased competition among television stations would also
spur the operators to think of new and innovative ways to
use the digital television format to reach their viewers.
Furthermore, because the digital television market will use
less of the airwaves than analog currently does, adding new
operators can be accomplished with the same amount or less
of the spectrum currently used.
At the same time, the expansion of ownership must be
accompanied by real regulation of the market to ensure that
the existing large corporations cannot drive out smaller
competitors. The regulations concerning percentage of
viewers and number of stations owned must be strengthened
and new regulations governing and enforcing the public
interest goal of television must be created.
The new regulations of the public interest burden
should focus on the new technologies available to digital
television station operators. Using these new technologies
to serve the public interest must be the goal of the FCC
regulations in order to both increase public interest
television and promote the growth of digital television.
For instance, People for Better TV propose setting aside 7
hours per week for educational programs that use the
5
423
digital television format for educational programs directed
at children of all ages. 5 Regulations could also institute
a meaningful rating system based on content, oversight of
commercials broadcast at children, and rate controls for
the pay- per- view events digital television operators choose
to offer.
Digital television is an emerging technology. As
such, it is difficult to perceive what uses will be made of
this product in the future. Only by structuring
regulations to position the Federal Communications
Commission in a flexible stance can the goal of public
service be continued and strengthened in this new arena.
B. REGULATIONS AIMED TOWARDS OPEN POLITICAL DISCOURSE
As stated above, television has become the major
source of news for most Americans. This is even truer of
political news and issues. Broadcasters using the free
airwaves provided by the people of the United States
therefore have a burden to provide access and information
to candidates and voters.
The public interest in equal access to political
discourse is the foundation of our democracy. Restricting
access through the publicly owned airwaves cannot be handed
to the few operators of television stations. Likewise,
5 See Letter to William Kennard from People for Better TV dated Nov. 16, 1999.
6
424
neither the Constitution nor the Communications Act would
permit the government to dictate what information should be
broadcast. Striking the balance between these two ideas
has already prompted debate over campaign reform and
financing. To an extent, television operators are
compelled to cover major political battles because they are
viewed as news in which the public is interested. This is
primarily true only in the national elections. Coverage of
Presidential races and national party conventions already
receives wide coverage from the major networks. However,
as the notice of proposed rulemaking points out, coverage
of local elections may be on the decline. 6 The market is
not sufficient by itself to compel serious coverage of
these elections because they are not viewed as significant
news events. The lack of coverage itself may be a
contributor to the lack of interest in these elections.
This downward spiral of no interest and therefore no
coverage and therefore no interest must be intercepted
through regulations designed to promote television
coverage.
A majority of the Advisory Committee believed that
their report did not go far enough in providing access to
6 See Notice of Proposed Rulemaking, 65 F. R. 4211,4216.
.-... _-_- ---..-_ “_ I.- _-
425
television for local elections. 7 I agree with that view,
and propose that coverage of local elections be mandated by
the FCC. Furthermore, I believe that leaving the choice of
elections solely in the hands of the broadcasters will do
little to enhance the coverage of elections.
To this point, much of the focus on regulations
requiring broadcasters to cover local elections has focused
on airtime requirements. For example, the Advisory
Committee proposes five minutes of airtime between 5: 00
p. m. and 11: 35 p. m. 8 Requiring airtime only does half the
job, however. The FCC should not allow the operators sole
discretion concerning which elections to cover. In order
to provide diverse coverage, the FCC should require
coverage of elections either as a percentage of total
elections or as a number of elections. Covering 30% of the
elections in any given year for the electorate which the
station covers would provide more diversity of coverage and
would also promote interest in those elections by
highlighting the candidates and issues. If, in larger
metropolitan areas, the 30% figure is too large, a station
could be allowed to cover a certain number of elections
with the goal of canvassing the entire area. By enforcing
'SeeNoticeofProposedRulemaking, 65 F. R. 4211,4216.
*SeeNotice ofProposedRulemaking, 65 F. R. 4211,4216.
8
- . ., . . ““..-.-..-- I_-. ~~ --,--
426
airtime and diversity, the FCC could enhance the public
knowledge and interest in these local elections.
Television has reached the public of our country like
no medium before it. With the advent of digital television
and its new capabilities, the public interest must again be
guarded to ensure that television fulfills its goal of
furthering both free expression and free access to all who
desire to make their views heard. We can learn from the
past use of television to encourage the growth and use of
the new television in a manner that is informative and
educational. Preserving the public interest in the medium
is paramount. Opening the market to new voices and
requiring all broadcasters to air a variety of opinions is
in line with the goals of the Federal Communications
Commission's duty to serve the ‘public interest,
convenience, and necessity." 9
’ See Notice of Proposed Rulemaking, 65 F. R. 42 11.
9
.--- I _ ._ I”,“, I _ .._-. ._. .,. _-.--.--
427
Before the
Federal Communications Commission Washington, D. C. 20554
In the Matter of
Proposed Rules
Federal Communications Commission
47 CFR Part 73
[MM Docket No. 99- 360; FCC 99- 3901
Public Interest Obligations of Television Broadcast Licensees
Comments of Vance W. Dennis
Vance W. Dennis
C/ O University of Tennessee College of Law
1505 Cumberiand Avenue
Knoxville, Tennessee 37996
vwdennis@ utk. edu
.-.“.“_..~. . . ,-._____ ,_ ^“_ __-- “.. __. ” --.-- .._-. -
428
I. Introduction
I am a student at the University of Tennessee College of Law. I am submitting these
comments in conjunction with a course in Administrative Law. These comments will
focus on section II- B- 3 of this Notice of Inquiry. More specifically, these comments will
concentrate on the need for more specific minimum requirements and guidelines
regarding television broadcasters’ public interest requirements, as well as
recommendations regarding ways that broadcasters should implement these public
interest requirements. Also, these comments will address the need for governmental
requirements, as opposed to recommended voluntary measures, to achieve these goals.
Furthermore, these comments will address the severe lack of local public affairs
programming that broadcasters are currently providing.
The Commission should:
l Establish clear minimum public interest requirements that television broadcasters
must meet;
a Require television broadcasters to devote one of the many SDTV stations they
will be able to broadcast strictly to non- commercial public interest programming, and;
0 Develop appropriate sanctions for television broadcasters who do not meet the
minimum public interest requirements instead of relying on voluntary actions by broadcasters.
429
3
II. The Commission Should Establish Clear Minimum Public
Interest Requirements
Television broadcasters have been required to serve the public interest since the first half
of this century. However, the “public interest” standard has been subject to a great deal
of modification over the years. The last two decades have seen a major shift in the
regulatory practices of the government over television broadcasters. ’ Though this
deregulation has resulted in a wider variety of programming, this shift to a marketplace
approach has not resulted in an increase in quality, non- commercial programming. If
Congress and the FCC proceed into the era of digital programming with the same attitude
concerning public interest regulations, there will likely be a dramatic decrease in non-
commercial public interest programming in relation to the total amount of programming
available to the public. The FCC should act now to ensure that television broadcasters
increase, or at the very least maintain the amount of public interest programming they air
in relation to other forms of programming.
Television broadcasting is a business, and must remain profitable ifit is to continue.
Therefore, commercial progr amming and advertising must occupy a large portion of the
available broadcasting time in order for the business to operate. However, the change to
digital progr amming will allow each broadcaster to multiply their available programming
time several times over. The increased costs associated with the change to digital
television will require broadcasters to increase their revenue, and will justify the use of a
large portion of the additional broadcasting time for commercial purposes. Nevertheless,
’ . n~~: n-. ntia. doc. no~,/~ ubintad\. colll/ no~ lllt~~ ubint. htm (Advisory Committee report, section III)
-~ I ” . ^_._.,..” -._,.. - ._.-... ___- ^.““--- ~.._
430
4
the broadcaster is using an extremely valuable public resource that no one else may use.
Broadcasters must pay for the use of public airwaves by devoting a significant portion of
their progr amming to satisfying the needs of their community.
Television broadcasters have been especially lacking in their coverage of local public
affairs. The courts have interpreted the public interest requirements of the
Communications Act of 1934 to encompass “community needs for programs of local
interest and importance and for organs of local self- expression.“ 2 However, most
broadcasters currently provide very little local public affairs progmmming. A recent
study of five markets (Chicago, Phoenix, Nashville, Spokane, and Bangor) found that
broadcasters devoted only 0.35% of their total programming time to local public affairs
over a two- week period. 3 Some stations carried no local programming at all.
Broadcasters should be required to provide adequate local public affairs programming in
return for the use of publicly owned airwaves. This programming should include
attempts to educate the public about local elections, candidates, laws, and other political
events.
Many broadcasters have demonstrated excellence in serving the public interest.
However, the very nature of capitalism tends to suggest that some broadcasters will do as
little as possible to serve the public interest because there are usually more profitable
alternatives. Voluntary standards of conduct would be an ideal solution ifall
broadcasters would agree to meet the established public interest requirements, but this
* Pinellas Broadcasting Co. v. FCC, 230 F. 2d 204,206 cert. denied, 350 US 1007 (D. C. Cir. 1956)
3 \~~~~~~. benton. ora/ Polic\~/ TV/~~ l~ atsloca1. htlnl (What’s Local About Local Broadcasting?)
431
5
will probably never happen Standards established by the National Association of
Broadcasters may not rise to the level that should be required of television broadcasters.
Individual members of the NAB may not follow standards that do meet public interest
requirements, and the NAB has no way to compel broadcasters to meet the public interest
standards they establish. Furthermore, there are almost 400 broadcasters who are not
even members of the NAK4 The FCC should not rely on the broadcast industry to
voluntarily give up valuable airtime for public interest programming when the industry
has no real way to enforce the standards it establishes. The FCC should establish and
enforce public interest guidelines that each broadcaster must meet. These guidelines
should include the following requirements:
Minimum hours of non- commercial, educational programming for children;
PvF amming guidelines to ensure that educational programming is shown at
times that children will most likely see it;
Minimum hours of local public interest programming, including coverage of local
government activities, cultural events, and adult education opportunities, and;
Increased access to the airwaves by members of the community.
The broadcasting industry is likely to object to mandates concerning these public interest
requirements. The additional costs for broadcasters will likely be the major reason for
protest. However, any additional costs associated with these services will be more than
offset by the increased revenue broadcasters will receive from the huge increase in
4 wvw:. ntia. doc. go~/ pubinta~ co~ no~~ rnt~~ bint. l~ t~ n (Advisory Committee report, Section III)
432
6
available programming time. 5
III. Broadcasters Should Be Required to Devote One SDTV Channel
to Non- Commercial Public Interest Programming
Analog broadcasting forces broadcasters to utilize their most limited resource, time, in
ways that will maximize profit. This often means shifting the most profitable
programming to times that offer the best opportunity for the most viewers. Since public
interest progr amming is not generally produced for profit, it is often aired at times when a
very small percentage of the viewing public will benefit ffom it. This means that while
broadcasters might technically be meeting their public interest requirements, they are
actually doing very little to serve the needs of a majority of the viewing public.
Requiring broadcasters to devote one SDTV channel to public interest programming
could alleviate this problem.
With the advent of digital technology, broadcasters will soon be able to broadcast six to
eight SDTV channels. 6 The Advisory Committee recognized that one of the options
available for broadcasters to satisfy their public interest responsibilities was to “dedicate
one of their multicasted channels to public interest purpose~.“~ This could be the most
effective and beneficial way for broadcasters to serve the public interest. First, a single
channel devoted to the public interest would eliminate the need to air profitable
’ This is based on the assumption that broadcasters will broadcast multiple SDTV signals. Broadcasters who elect to broadcast one HDTV signal should have comparable requirements that are modified in relation
to the ability to use their excess spectrum to satisfy public interest nquirements. 6 ~~ n~.~~ tia. doc.~ o~/ pubintad\~ colo~~~ t~~ ubint. htm (Advisory Committee report, Section III)
’ id
433
7
programming at prime viewing times. Progr amming times could be determined by the
importance of the progr amming to the community instead of its profitability. The
additional costs of providing this service could be more than offset by the huge increase
in broadcasting time on the other channels that the broadcaster can devote to commercial
Purpos=-
The major drawback to this proposal would be its impact on broadcasters who wish to
broadcast one HDTV station instead of several SDTV stations. Broadcasters who wish to
broadcast one HDTV station will not have the increased revenue that multicasting
broadcasters will have. However, those broadcasters should not be exempt from serving
the public interest. Therefore, new regulations should be more flexible with HDTV
broadcasters so they can take advantage of digital technology without any undue burden.
One suggestion would be to establish a certain percentage of total programming that each
broadcaster must devote to public interest progr amming. This requirement could be met
with a dedicated station for SDTV broadcasters and other, less stringent requirements,
such as the use of extra bandwidth for public interest obligations, for HDTV
broadcasters.*
IV. The Commission Should Develop Sanctions for Broadcasters Who
Do Not Satisfy Their Public Interest Responsibilities
Broadcasters can develop extensive codes of conduct in their attempts to serve the public
interest. They can also promise to abide by any regulations that the FCC adopts.
* Less stringent requirements for HDTV broadcasters might also encourage broadcasters to broadcast iu HDTV, which is the route that Congress and the FCC originally expected broadcasters to pursue.
434
8
However, without the threat of sanctions against stations that do not meet the
requirements, broadcasters will continue to conduct business as usual and public interest
programming will continue to decline in relation to the total amount of available
programming. The only way to ensure that broadcasters use digital technology to benefit
the public interest is to develop graded sanctions for broadcasters who chose not to
follow public interest guidelines.
A system of graded sanctions for broadcasters who do not satisfy their public interest
obligations would be much more effective in promoting public interest programming than
our current system. Withdrawal of a license is an extreme sanction, and will very rarely
be done. When it is the only available sanction, broadcasters can be reasonably sure that
it will not occur, and can reduce public interest programming with little fear of
repercussions. However, a graded system, such as the one used in Italy, would be much
more effective. The 1990 Broadcasting Act allows the regulatory authority in Italy to
fine broadcasters or temporarily suspend licenses for violations that would not justify
revocation of a license. ’ This type of graded sanctioning system would give the
Commission the strength it needs to enforce any regulations it chooses to adopt.
v. Conclusion
Broadcasters have done a fair job of repaying society for the use of the public airwaves
by broadcasting programs that serve the public interest. Nevertheless, the advent of
digital technology will enable broadcasters to greatly expand their programming and
9 ivww. benton. org/ DigitalBeat/ dbO4 1699. html (Public Merest Obligations iu Broadcasting- Internsttional
Comparisons)
435
9
revenue. The Commission should take action now to ensure that broadcasters use this
new technology in a way that will benefit the public interest. By establishing clear public
interest requirements that broadcasters must meet, requiring a small but substantial
portion of total programmin g time to be devoted to public interest programming, and
developing sanctions for broadcasters who do not meet minimum public interest
requirements, the Commission can make sure that society, as well as broadcasters, benefti
from the switch to digital broadcasting.
_.. ... II.-^__.._. ..-.__ l_ -.._ -.-~~-.. l.*-_ ll___ l.-
436
To: Magalie Roman Salas, Executive Secretary- Fe
Communications Commission
From: Amy E. Neff
cc: Professor Glenn H. Reynolds, University of Tennessee College of Law
Date: March 17, 2000
Re: Comments on Proposed Rulemaking Concerning Public
Interest Obligations of Television Broadcast Licensees
(Docket No. 99- 360)
Dear Secretary Salas,
This comment is sent in response to the FCC's request for
public comments, 65 Fed. Reg. 4211 (January 26, 2000), regarding
the public interest responsibilities of television broadcasters
in the wake of digital technology. Specifically, I am writing to
advocate that the FCC capitalize on the timing of this
transition to digital television (" DTU") in order to formulate
new, more quantitative guidelines regarding children's
programming. These new guidelines should be designed to make
broadcasters take responsibility for the role television plays
in the development of our nation's children.
Although the views contained within this comment may
reflect my views as a law student, my comments primarily stem
from my role as a soon- to- be stepmother to two school- age girls
and from my hopes that someday I will raise a child of my own.
437
Amy E. Neff
March 17, 2000
Introduction:
Like it or not, television has become a prevalent part of
most children's lives. It is the after- school baby- sitter for
children arriving home from school before their parents arrive
home from work. It is the pacifier to young children whose busy
parents do household chores. It is a major form of recreation
for many children, who, unexplainably, are not as interested in
playing in the neighborhood as my friends and I were as
children. Today's children prefer watching television to more
active pursuits. Consequently, it is probable that when children
are introduced to the additional features DTV can offer, it will
be even more difficult to separate them from the television.
Since our children are spending an increasing amount of
time in front of the television, our need for broadcasters to
provide programming specifically geared towards children's
education increases. This is not an "if you can't beat them,
join them" approach; rather, it is a realistic approach that
takes into account the unavoidable fact that children watch a
significant amount of television, ' and will continue to do so.
Broadcasters Have Been Allowed to Shirk
Their Public Interest Duties.
The Federal Communications Commission (" FCC") has been down
this proverbial road before with television broadcasters
1 On the average, children ages 2- 17 watch 3 hours of television per day.
Television Audience 1993 at 14, Nielsen Media Research, 1993.
2
438
Amy E. Neff
March 17, 2000
regarding their public interest obligations to children. In the
early 1970's the FCC explicitly recognized that broadcasters had
an obligation to provide educational programming to children. At
that time though, the FCC determined that no quantitative
requirements, other than a limit on the amount of commercials,
were needed to ensure that the obligation was recognized. Not
surprisingly, this hope for self- regulation in the industry
regarding children's programming remained just that, a hope.
Then, in 1984, even after a task force determined that
broadcasters were only making half- hearted efforts to provide
children's programming, the FCC again chose to refrain from
structuring a quantitative standard for measuring the
broadcasters' performances. Finally, when Congress enacted the
Children's Television Act (" CT,") in 1990, the FCC responded
with a rulemaking to accommodate mandates in the legislation
regarding children's programming.
After the public expressed concern at the lack of guidance
provided for broadcasters in the CTA rulemaking, the FCC issued
its children's television policy statement and accompanying
rules to alleviate this concern. Still, the problem is that the
FCC has not required enough of broadcasters. Too many of the
policies propagated by the FCC in 1996 allow broadcasters the
"wiggle room" to opt out of making any real substantive changes
3
439
Amy E. Neff
March 17, 2000
to the children's programming they provide. Recall the following
portions of the policy:
1. The FCC created a term called "core programming" that
encompassed the agency's requirements for children's
programming. In this definition, the FCC declined to
require that such programming have education as its primary
purpose. Instead, programming only had to have children's
education as a significant purpose. Additionally, the FCC
stated that it would rely on the good faith judgment of
broadcasters to determine whether a program had this
significant educational purpose. (Clearly, this is a self-
regulating measure.)
2. No particular age groups needed to be targeted in order to
qualify as core programming.
These and other provisions of the policy statement enabled
broadcasters to meet their public interest obligations with
minimal effort.
The Guidelines for DTV Broadcasters Should Include Quantitative Standards
The FCC's Notice of Proposed Rulemaking (" NPRM") asked how
its children's television policy statement should apply in a
digital environment. The answer is that the policy needs to be
strengthened before it is applied to DTV broadcasters.
4
_ _ I^ _... - _ .. I .,. . ..-. ._,_,,...._ --- I-
440
Amy E. Neff
March 17, 2000
Several letters from members of Congress have preceded this
NPRM suggesting that DTV broadcasters simply be required to
comply with provisions of the CTA in order to receive a DTV
license. These legislators are advocating that the FCC simply
reasserts a position that has proven to be ineffective in
improving children's programming. To merely require the FCC to
enforce the CTA and its accompanying rules would allow DTV
broadcasters to once again escape from providing the children's
programming that is needed
However, federal legislators aren't the only ones backing
away from a stronger position by the FCC regarding children's
programming. Industry insiders, as expected, are promoting an
approach that isn't going to put any real pressure on
broadcasters to make any substantive changes. For example, in a
letter written by the Chairman of Paxson Communication
Corporation to the FCC, the Chairman recommends that the FCC
adopt the company's proposed Public Interest Code of Conduct
(" Code") .2 In this Code, there is only one reference to children,
and it is a general one. 3 Conversely, scattered throughout the
Code is text that ensures broadcasters will retain their prized
' Letter from Lowell Paxson, Chairman of Paxson Communication Corporation, to William Kennard, Chairman, Federal Communications Commission (Feb. 11, 2000).
3 "Television stations' service to their communities includes contributions to
political discourse, public service announcements, children's, religious,
educational and cultural programming as well as involvement in specific
community activities." Letter from Paxson to Kennard, at 4.
5
. ..-_-._^ __-..._ _.,_.__ __--_. "~..."_ --
441
Amy E. Neff March 17, 2000
discretion, allowing them to essentially opt out of the Code's
requirements.
It is apparent that broadcasters are not going to move
beyond what is required of them, unless compelled to do so by
the guidelines for DTV licensees. Therefore, broadcasters that
have become accustomed to fulfilling their existing public
interest obligations regarding children by doing the bare
minimum need to have the bar raised. Establishing some new
quantitative standards would accomplish this goal.
The FCC Should Adopt the Recommendations for Quantitative
Standards Proposed by People for Better TV.
As People for Better TV (PTV) correctly pointed out, DTV
technologies provide a fertile ground for the expansion of
children's educational programming. 4 Accordingly, PTV advocates
that DTV broadcasters should be required to set aside a minimum
of 7 hours each week for children's educational programs. Since
DTV enables data transmissions to schools and multicasting,
broadcasters would seem to have ample opportunity to meet such a
standard.
Even if the level of children's programming was already at
the 7 hours per week level, frequent interruptions for
commercials would still effectively divert children's attention
from educational topics. In its reminder to the FCC that a
442
Amy E. Neff
March 17, 2000
public proceeding on the public interest obligations of DTV
broadcasters should be held, PTV recommended that commercials be
limited during children's programs to four sixty- second
commercials per hour. 5 That would allow for 56 of every 60
minutes of children's programming to be free of advertising.
Currently, broadcasters may use 10.5- 12 minutes (weekends or
weekdays respectively) of every hour of children's programming
for commercials. 6
Historically, the reason broadcasters have not been
supportive of more children's programming, particularly for
younger children, is that children are not consumers, and the
advertising spots that make the broadcasters money are more
effectively shown during adult programming. Yet, it is these
same broadcasters that oppose limits to the amount of
commercials that may be shown during children's programs. This
fickle position indicates that broadcasters really just don't
like being told what to do by the FCC.
The commercial limits proposed by PTV could go a step
further, however. Why not require DTV broadcasters to schedule
commercials only at the beginning and at the end of programs,
particularly 30- minute programs. 3 A guideline such as this would
4 Letter from Mark Lloyd, Counsel for People for Better TV, to William Kennard, Chairman, Federal Communications Commission (Nov. 16, 1999), at 2.
' Letter from Lloyd to Kennard, at 2.
6 47 U. S. C. S. § 303a (1990).
7
-. ^. . ..- -_ ._ -_. s ” ___ x-.- I. _I”_ _ _._- ^,,.” .,-- ““... ..-- m- w---
443
Amy E. Neff
March 17, 2000
allow children to watch a program free of interruption. 7 This
approach would be more in keeping with a serious commitment to
educating children through the medium of television, a definite
public interest.
Other quantitative measures that could be implemented would
simply require some fine- tuning of the 1996 policy statement.
For instance, perhaps core programming should target specific
age groups of children. Currently, broadcasters tend to meet
existing weekly children's programming goals by airing primarily
programs targeted at teenage "children." They do this because
teenagers, unlike toddlers, are consumers that can and do
respond to advertising.
I would also suggest that the FCC modify its requirement
that core programming occur between 7: 00 a. m. and 10: 00 p. m., by
requiring broadcasters to include children's programming at
specific times of the day when children are watching- after
school, before bedtime, during the dinner hour, etc. This would
preclude broadcasters from grouping children's programs at non-
peak viewing times in an effort to save prime time for adult
programming exclusively. Again, with multicasting capabilities,
this guideline should not be difficult to meet.
' This is an idea called "clustering" by Action for Children's Television, the
group that first promoted the concept. Charting the Digital Broadcasting
8
444
Amy E. Neff
March 17, 2000
DTV Broadcasters Can Be Precluded from
Hidinq Behind the First Amendment.
Concededly, the FCC's control of DTV broadcasters is
limited by the First Amendment, which accords significant
editorial powers to broadcasters in the name of free speech. At
this same time, the FCC has been given a counteracting power to
specifically determine the public interest obligations of
broadcasters.
Television broadcasters have a duty to be public trustees. '
They must act as fiduciaries of the public interest, as if owned
by the public. At the same time, broadcasters are in business to
make money. These rivaling goals put broadcasters in a unique
position where they must serve two masters- the government and
the broadcasting companies' shareholders.
Congress was clearly concerned about the failure of
broadcasters to place priority on children's programming when it
passed the CTA. During the discussion of the CTA, Congress
concluded that the First Amendment would not prevent the FCC
from considering whether a television licensee has provided
programming specifically designed for children when issuing or
renewing a license.
The United States Supreme Court has echoed the views of
Congress regarding the First Amendment's application to
Future: Final Report of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, (Dee 18, 1998), at 29.
9
445
Amy E. Neff
March 17, 2000
children's programming. In fact, the Court has even gone so far
as to hold that the FCC has the ability to impose limited
content restraints on broadcasters. g
The quantitative standards proposed in this comment, if
implemented by the FCC, do not contemplate regulating content.
They are content neutral and only impose quantitative
constraints on the broadcaster's use of digital television.
Surely, if content limitations would be allowable, quantitative
standards should pass First Amendment scrutiny.
Conclusion
Although the technology of DTV promises to enhance all
types of programming, including children's programming, it is
really the advent of its use that is more significant. The
transition to DTV allows the FCC to exert real pressure on
broadcasters that desire digital licenses. Through the
propagation of some rules with "bite," the FCC can finally stop
broadcasters from shirking important public interest
responsibilities. The FCC should create guidelines that
acknowledge the active role television plays in children's
education. Congress recognized this and stated: ‘it has been
clearly demonstrated that television can assist children to
learn important information, skills, values, and behavior.""
a Charting the Digital Broadcasting Future, supra note 8, at 19.
' Turner Broadcastinq v. FCC, 512 U. S. 622 (1994).
lo 47 U. S. C. S. 9 303a (1990).
10
. ,.... __._" _.__ .^ .._... ^^ I__, .I--"*.--_---_-" X.
446
To: William Kennard, Chairman, Federal Communications Commission
From: Amy Fletcher
CC: Prof. Glenn Reynolds
Date: March 17, 2000
Re: Comments on Public Interest Requirements for Digital Broadcasters
Dear Chairman Kennard,
I am writing to you in response to the Federal Communications Commission’s
request for comments on public interest requirements for broadcasters during the
transition to digital technology, 65 FR 4211, FCC 99- 390 (Jan. 26, 2000).
Introduction and Background
With ninety- eight percent of American households having at least one television
set, television has arguably the most influential presence in American culture. I have
relied on television for varying purposes at every point in my life, and it has undoubtedly
had an influence on me. As a “child of the Eighties,” I grew up watching educational
programs such as Sesame Street and Mister Rogers ’ Neighborhood. As I matured, I
began to rely on television more for entertainment value and for my primary source of
news. A day rarely goes by that I do not turn on my television set. Since television is
such an influential medium, public interest requirements should become more
sophisticated to keep up with the transition into a digital era.
The notice of proposed rulemaking for public interest obligations of television
broadcast licenses addresses two particular areas that are of great concern to me:
children’s programming and political programming. Television broadcasters must be
aware that many parents choose, whether right or wrong, to use television as a babysitter.
1
._._ _ .-~ ~.~- ,- I.“,_-..--., .---.- I_..-- ,“. I-
447
The FCC should impose the highest obligations on broadcasters of children’s
programming to ensure that children will not be adversely affected by the things they see
and hear on television during the times of day they are likely to be watching.
My second concern is the amount of airtime, or lack thereof, that is dedicated to
political candidates and campaigns, as well as issues that may be affecting communities
locally. Technically, broadcasters are merely “borrowing” the airwaves from the viewing
public. With this being the case, broadcasters should have explicit obligations to provide
coverage of the issues that affect the viewing public they serve.
As a young adult female who desires both a family and a career in the political
arena, I am very concerned about the impact digital technology may have on my children
and my career. I would like to urge the FCC to continue to hold television broadcast
licensees to high standards for public service. As we move forward into a digital age, we
must use advancements in technology to likewise advance the quality of public service.
Standards for Children’s Programming
An article I read recently described television in two distinct ways as to its effect
on a child’s life: it can be a positive educational tool, or a value- destroying influence.
The FCC must ensure that television continues to be an educational tool for children of
all ages. Current regulations place limits on the duration of advertisements that can be
shown during children’s programs. Broadcasters are limited to only 10.5 minutes per
hour on weekends and 12 minutes per hour on weekdays. ’ Frequency may become a
bigger problem than duration when the internet merges with television, and these
numbers may become obsolete.
’ 17 U. S. C. A. Q 303a( b)
2
- ..-_ _ - .-.- _ ,-... r-- ~-_
448
Surfing the web without seeing advertisements on every site you visit is
practically impossible today. In addition, these advertisements may be targeted for a
specific product or service that is related to the subject of the site you are visiting. As I
was doing web- based research for this comment, the website mvp. com mysteriously
appeared on my screen without my having to link to it. Out of nowhere, Wayne Gretzky,
Michael Jordan, and John Elway, all smiling, decided they wanted me to push a button so
I could have the latest pair of New Balance tennis shoes for only $89.99. Children should
not be subjected to this manner of targeted advertising. Without strict standards, this
capability will be carried over to our television sets as digital technology becomes more
prevalent.
One of the greatest threats to the well being of children is the ability to target
commercials to specific households depending on the choice of programming. Marketers
will know what we watch, and when and how often we watch it. This poses a serious
enough threat to adults who are easily coaxed into buying products. Imagine if
vulnerable children could “ORDER NOW’ by the simple click of a button while they are
watching their favorite cartoon. Children should be able to enjoy watching television
without being bombarded with advertisements. When television does merge with the
World Wide Web, the FCC should place limits on the number of advertisements that can
be shown during the hours of children’s programming. People for Better TV has
recommended a limit of four commercials per hour during children’s programs. 2 While
this number may be too low, the maximum limit should not exceed twelve. Working
with the current duration limits, this would allow two quality commercials for every ten
minutes of programming. By imposing these limits, children will be limited as to the
3
449
number of products that they can be influenced to purchase while watching their favorite
shows.
In addition to imposing advertising obligations, the FCC should consider ways to
enhance educational programming through the increase in the number of channels
available. Since broadcasters do not own the airwaves they are currently licensed to use,
they could be required to “donate” a specified number of hours for use by schools and
other educational institutions. The number of hours they donate should be based on the
schedules of local school districts. Due to the added capabilities of multicasting, they
may have the option of donating an entire channel to further educational purposes. The
individual schools could evaluate how to allocate the time that they are given to enhance
the education of students. Perhaps the students could develop their own programming to
be shown to the community at large, thus improving relationships between the
community and the school. Schools may wish to use their airtime strictly for
programming to be shown throughout the school. The school could also develop
programs to keep children who are ill at home from getting behind other classmates
through tutorial programs. With unlimited options, educational institutions would have
access to a powerful educational tool that would otherwise be unaffordable without the
support of local broadcasting stations.
Standards for Political Programming
According to the Alliance for Better Campaigns, broadcast time is the single
’ Peoplejbr Better TVRecommendations (visited Mar. 11,2000)~ httr,:// www. bettertv. or~. pbtvrec. htm>.
3
450
largest expense in political campaigns. 3 In 1998, a White House advisory panel of
broadcasters and public interest advocates recommended that television stations should
devote five minutes a night to political discourse as part of their public interest
obligations. As of the February 1, 2000, New Hampshire primary, the national networks
were airing an average of only thirty- four seconds of political discourse a night. 4 This
problem of lack of coverage on the networks has some roots in the extensive coverage
offered by cable channels such as CNN, MSNEE, and the Fox News Channel. While
many Americans can tune in to these cable networks for political news, around 85 million
Americans are left out, because they either are unwilling or unable to pay for cable.
Access to political information should not be an economic issue.
The FCC should impose, not merely recommend, obligations on broadcasters to
offer free airtime to candidates running in local or national elections. This airtime should
be allotted among all interested candidates, so that the station does not inadvertently
endorse one candidate over another. This requirement would not only free up funds for
political candidates to use in other ways, but it would also ensure that the entire American
viewing population remains informed about elections and political issues. People should
not be forced to “buy” cable just so they can remain reasonably informed about current
events. The remedy to this problem can be justified once again by #z. f& o! that
broadcasters pay nothing for the use of airwaves. Since the airwaves are borrowed from
the public domain, users of those airwaves should be required to keep the public they
serve informed on local and national elections.
’ Issue Briej Free Air Time (visited Mar. 11,200O)
. ’ :Vetwork I, i’ewers Get Fleeting Glimpses of Presidential Hopefuls, Study Finds (visited Mar. 7,200O)
.
I.. _ . . . “_ --_ ._... --“-_ I ----.
451
Requiring broadcasters to offer free airtime to further political debate will
hopefully improve the quality of candidate centered programming. A study by the
Project for Excellence in Journalism found that eighty percent of the network coverage
leading up to this years New Hampshire primary focused on campaign tactics and
strategies, while only thirteen percent was devoted to issues. 5 If broadcast networks
would devote free airtime to political candidates by providing forums where important
issues could be debated and expressed, voters would be more informed when they head to
the ballot box. Likewise, if the viewing public knows more about the candidates’ actual
platforms, as opposed to their campaign strategies, more people may feel compelled to
vote. An additional benefit may be that free airtime would level the playing field
between candidates, thus diminishing the public perception that the candidate who raises
the most money wins.
With so many benefits possible, broadcasters should be required by the FCC to
donate airtime to political campaigns. Three and one- half hours a week, or thirty minutes
per day, seems to be an appropriate minimum. Broadcasters would have the option of
how to allocate these hours during the week based on the types of programming they
would like to show. In non- election years, the required hours could be devoted to local
issues that individual communities may be faced with. In election years, the required
hours should be allotted equally to important local and national campaigns. Citizens are
entitled to adequate coverage of and reasonable access to issues that may affect them.
The FCC must impose minimum requirements on local broadcasters to ensure that this
duty is not left up to cable stations.
5 Sean Elder. Election- free 7’1’ (visited Mar. 11, 2000)
~http: ll~~ w. salon. com/ media/ col/ elde/ 20~~ 02~ 29/ camDai~ index. html~.
6
_. - ^__ _ -.. ..- .__*- -~._---
452
Conclusion
Since the introduction of digital television sets into the market in August of 1998,
over 155,000 units have been sold. Sales of digital television sets have increased over
475 percent since this time last year. 6 With more Americans having access to digital
technology, the FCC must take action to impose higher standards on digital broadcasters.
The increase in capabilities must be accompanied by an increase in the public interest
standards in order to provide adequate protection to the viewing public.
The FCC must continue to afford the most protection to children through limits on
advertising. Children can also benefit from the transition to digital technology through
mandatory education requirements for local broadcasters. In addition, the FCC must
ensure that broadcasters devote a specified amount of free airtime to political discourse.
As digital technology creates endless possibilities for the way that we watch television,
broadcasters must likewise be held accountable for serving the public interests as these
possibilities are explored. The airwaves they use are on loan from the public. The FCC
has a duty to make certain, through the imposition of high public interest requirements,
that broadcasters are worthy of the airwaves they use.
Thank you for your consideration of these matters.
Cordially,
Amy D. Fletcher
’ DTT’Sales Start OffStrong in 2000 (visited Feb. 29. 2000)
. -
7
453
TO: Magalie Roman Salas, Office of the Secretary, Federal Communications Commission
FR0M: Chad E. Wallace
DATE: March 16, 2000
RE: Comments on Commission's Notice of Inquiry on Public Interest Obligations of Television Broadcast Licensees
1NTRoDucT1oNANDBAcKGRouND
On January 26, 2000, the Federal Communications Commission
published a notice of inquiry concerning the public interest
obligations of television broadcast licensees with the advent of
digital television. 65 Fed. Reg. 4211 (Jan. 26, 2000). Under
the current regulatory scheme, broadcast licensees must comply
with various pubic interest obligations dealing with such issues
as community programming, political discourse, and educational
programming. The old analog format, under which the present
regulatory scheme is based, is being replaced, by mandate, with
digital technology. The Commission's notice of inquiry was
undertaken to "collect and consider all views" on broadcasters'
public interest obligations in the digital world. With these
comments, I respectfully respond.
I am a second- year law student at the University of
Tennessee College of Law and a consumer of television
programming. I am writing to voice my conviction that more
public interest obligations should be imposed on television
broadcast licensees with the arrival of digital technology. In
454
particular, with the importance of an informed electorate, more
time should be devoted to political discourse either with free or
reduced rate time for candidates. And, with the unwavering
importance of educational programming for children, the minimum
weekly air time devoted to this subject should be increased.
Moreover, or in the alternative, the existing or any new
obligations imposed should be enforced in a way that truly serves
"the public interest, convenience and necessity." Existing
regulations are too relaxed and allow broadcasters to fulfill
their obligations in irrational forms.
MoREi ,J? UBLIC I- ST OBLIGXi! IWS SHOULD BE RdPOSED ON BROADCAST
LICENSEES WITH THE INCREASED CAPABILITY OF DIGITAL TEZEVISION
The Telecommunications Act of 1996 specifically provides
that the public interest standard is applicable to television
broadcasting in the digital era. Digital television allows
broadcasters to do more with their existing space in the
bandwidth: broadcasters will have the capability, if they so
choose, to offer as many as six channels on the digital bandwidth
where they could only offer one on the analog format. With the
increased capability should come increased public interest
obligations and not just increased commercial opportunity for
broadcasters. In all fairness, I do recognize that it may play
out in the end that broadcasters will still only use one channel
of high definition television (HDTV). If that turns out to be
2
“_-,. _ _ -_-- -_.. .-” --_ 1-~
455
true, their situation will be no different than under the analog
format and more regulation may not be appropriate.
If broadcasters are only required to continue to air the
same level of public interest programming with digital television
as they do with analog, the percentage of public interest
television in relation to broadcasters' capability will decline.
This means that the on- air public services the broadcasters do
provide will become mixed in with an even larger mass of
commercial programming. Thus, the overall effect will be a
further "diluting" of public service programming- such programming
will be harder to find or stumble upon among all the other non-
public service programming.
On the other hand, imposing more public interest obligations
on broadcasters with digital television would not raise the
overall percentage of public interest programming in relation to
their overall capability. The level of obligation would remain
the same relatively. But broadcasters oppose any new obligations
because such would only cut into the additional profits that
digital television is certain to bring. Critics of the
television industry warn that "digital TV will give broadcasters
free reign to make more money and ignore their public service
obligations to the public." '
l Tim Jones, Panel on TV Standards Shuns New Regulations, Chicago Tribune 1 (Nov. 6, 1998), 1998 WL 2913733.
3
- -.. .__._._ I_ I_
456
There are a couple of areas that I would like to
specifically comment on- political discourse and educational
programming. The "Introduction" to the Notice of Inquiry stated
it best: "Television is the primary source of news and
information to Americans, and provides hours of entertainment
every week. In particular, children spend far more time watching
television that [sic] they spend with any other type of media.
Those who broadcast television programming thus have a
significant impact on society."
With the additional temptation that digital television
brings to watch a movie or a rerun of a soap opera instead of a
political debate or community service message, the voting public
will be even more ignorant than what it is under the analog
format: "Better television doesn't mean prettier pictures or
better sound, it means more access to educational programming for
children and adults, programming on local issues and interactive
data services for schools. N2 I understand that people can not be
forced to watch political debates or educational shows or the
like, but the opportunity should still be present. For example,
I do not get the opportunity to watch much television, but when I
do, I can not recall seeing much programming that could be
classified as meaningful public interest programming. Instead, I
see soap operas, movies, wrestling, music videos, Jerry Springer,
457
or professional sports. I understand that most of these programs
have some kind of value if nothing but for entertainment. I also
am not advocating for television that airs nothing but political
debates or congressional hearings. What I am saying is that the
public would be better served if it was more informed, or at
least had the opportunity to be more informed, about the issues
and decisions that will eventually affect their lives in the
future. One of the main reasons I do not vote as much as I
should is that I simply do not know enough about the candidates
or what they stand for. To me, voting under these conditions
would be like flipping a coin. This is not informed
decisionmaking.
Thus, in response to your goal of initiating a public debate
on whether broadcasters' public interest obligations should be
refined to promote democracy and better educate the voting
public, I must emphatically reply "yes." Society could only
benefit with the increased political discourse by being better
decisionmakers. Therefore, I must agree with numerous members of
Congress that this Commission should propose regulations
providing for free or, at the very least, reduced rate time for
political candidates.
Another particular area is educational programming for
children. The importance of this subject can not be overstated.
' Robin Brown, Hollywood Reporter 64( l) (Jan. 15, 1999) (Statement of Larry Kirkman, executive director of the Benton
458
No means of communication is as ubiquitous or effective an
educator as television. Thus, the increased capability of digital
television should be used to provide more time to educational
programming. The minimum time set aside each week for
educational programming under the present regulatory scheme- three
hours per week- should be increased. In addition, the amount of
advertisement that takes place during these times should be
limited. This time should not be exploited by broadcasters as an
additional source of revenue. It is especially important during
this time that broadcasters make a conscious effort to stay
focused on their public interest obligations.
EXISTING OR NEW PUBLIC INTEREST OBLIGATIONS SHOULD BE ENFORCED IN
A MENIINGE'UL WAY
III will think of the public interest standard as a sort of once- handsome thoroughbred, so abused and
neglected that it has finally broken down in the middle of the track. Perhaps we can take it back to the
paddock in the hope that, with care and love, it can recover- or at least produce offspring that recall the
beauty of the original. If not, let us simply put the poor beast out of its misery once and for a11.3
Basic assumptions underlying television broadcasting are
that the airwaves are public property and a scarce commodity.
That being so, under the Communications Act of 1934 and
subsequent legislation, the government allows broadcasters to use
the spectrum for free so long as they serve "the public interest,
convenience and necessity"- i. e., quid pro quo. However, it is no
Foundation), 1999 WL 9555950.
6
-. _. _-,_ _ . -- ." -- I. ._.. _ -I".-_--". l_ - -1-
459
secret that regulators have only vaguely defined these
obligations, and broadcasters have met their requirements in a
variety of, and sometimes disingenuous, ways: "FCC regulation of
broadcasting [is] a charade- a wrestling match full of fake grunts
and groans but signifying nothing." 4 For example, I do not
believe shows like "The Jetsons" and "Wheel of Fortune 2000" are
quite what we had in mind when mandatory children's programming
was imposed upon broadcasters. Similarly, I do not think that
"The Little Mermaid" meets the definition of educational
programming because it teaches girls how to be leaders. Yet
these are exactly the types of arguments that broadcasters are
advancing. Another example is that broadcasters are "expected"
to air public- service announcements. However, there are no
guidelines that outline how many of these announcements
broadcasters are to air or how often.
Once it has been established, and it has, that the
television spectrum is public property and that broadcasters use
it for free in exchange for serving "the public interest,
convenience and necessity," public interest programming should
actually mean something. In short, the public should get the
"benefit of its bargain." The Gore Commission Report noted that
‘[ t] he foundation of the American system of broadcasting is that
3 Statement of Commissioner Ervin S. Duggan, 8 FCC Rec. at 5340 (1993).
4 Henry Geller, Public Interest Regulation in the Digital TV Era, 16 Cardozo Arts & Ent. L. J. 341, 344 (1998).
7
__
460
Could not acquire words on page 461
Could not acquire words on page 462
Could not acquire words on page 463
Could not acquire words on page 464
Could not acquire words on page 465
Could not acquire words on page 466
Could not acquire words on page 467
Could not acquire words on page 468
Could not acquire words on page 469
Could not acquire words on page 470
Could not acquire words on page 471
Could not acquire words on page 472
Could not acquire words on page 473
Could not acquire words on page 474
Could not acquire words on page 475
Could not acquire words on page 476
Could not acquire words on page 477
Could not acquire words on page 478
Could not acquire words on page 479
Could not acquire words on page 480
Could not acquire words on page 481
Could not acquire words on page 482
Could not acquire words on page 483
Could not acquire words on page 484
Could not acquire words on page 485
Could not acquire words on page 486
Could not acquire words on page 487
Could not acquire words on page 488
Could not acquire words on page 489
Could not acquire words on page 490
Could not acquire words on page 491
Could not acquire words on page 492
Could not acquire words on page 493
Could not acquire words on page 494
Could not acquire words on page 495
Could not acquire words on page 496
Could not acquire words on page 497
Could not acquire words on page 498
Could not acquire words on page 499
Could not acquire words on page 500
Could not acquire words on page 501
Could not acquire words on page 502
Could not acquire words on page 503
Could not acquire words on page 504
Could not acquire words on page 505
Could not acquire words on page 506
Could not acquire words on page 507
Could not acquire words on page 508
Could not acquire words on page 509
Could not acquire words on page 510