In the matter of AMENDMENT TO PART 73 OF THE
COMMISSION'S RULES AND REGULATIONS
RELATING TO STATION IDENTIFICATION REQUIREMENTS
Docket
No. 17145
FEDERAL
COMMUNICATIONS COMMISSION
10
F.C.C.2d 399 (1967); 11 Rad. Reg. 2d (P & F) 1607
RELEASE-NUMBER:
FCC 67-1131
October
11, 1967 Adopted
BY THE COMMISSION: COMMISSIONER BARTLEY ABSENT; COMMISSIONER
LOEVINGER DISSENTING AND ISSUING A STATEMENT IN WHICH CHAIRMAN HYDE JOINS; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT;
COMMISSIONER WADSWORTH CONCURRING IN THE RESULT.
[*399]
1. On January 25, 1967, the
Commission adopted a notice of proposed rulemaking (FCC 67-114) n1 to prohibit broadcast licensees in station identification
announcements, promotional announcements, or any other broadcast matter from
leading or attempting to lead members of the listening or viewing public to
believe that their stations have been assigned to cities other than those
specified in their licenses.
n1 The
notice was published in the Federal Register of Feb. 3, 1967 (32 F.R. 2384).
Requests were received for extension of time for filing comments and reply
comments, and these deadlines eventually were extended to Apr. 28 and May 17,
1967, respectively (32 F.R. 6408).
2. Efforts
of certain licensees to mislead the public as to the licensed location of their
stations have long been a matter of concern to the Commission. Gulf Television
Co., 12 R.R. 447; Tulsa Broadcasting Co., 12 R.R. 1256. More recently, 8 R.R.
2d 1187, we found such practices by a licensee undesirable but, under the
particular circumstances of that case, not in violation of existing rules
because the call letters and city in which the station was licensed were
announced at the time specified for station identification. In the light of information coming to our
attention regarding misleading announcements as to station location by this and
other stations, we thought it necessary to amend the rules. We further believed that nothing short of a
general prohibition of the broadcast of misleading matter on this subject would
cover all situations and prevent the defeat of the intent and purpose of our
station identification rules.
Accordingly, we adopted a notice of a proposal to amend part 73 of the
rules to provide that A licensee shall not in station identification
announcements, promotional announcements, or any other broadcast matter either
lead or attempt to lead the station's listeners to believe that the station has
been assigned to a city other than that specified in its license. n2
n2 The
amendment to the rules relating to television stations substitutes the word
"audience" for "listeners."
[*400] 3.
More than one-half of the parties submitting comments support the
proposed rule or its purpose, and one (Old Pueblo Broadcasting Co.) urges the
Commission to go further and specify that even in non-broadcast forms of
advertising and promotion stations may not identify themselves with communities
other than those in which they are licensed.
n3 However, most of the
parties favoring the rule ask clarification (a) to specify that stations
licensed to more than one city or authorized to use multiple-city
identification may in all program matter identify themselves accordingly, and
(b) to specify that stations licensed to one city but providing substantial
service to other cities or nearby areas may so describe the scope of their
coverage, provided no attempt is made to mislead the audience as to their
licensed location. One of the parties
in this group asks the Commission to state that licensees shall be entitled to
declaratory rulings under section 1.2 of the rules. Several suggest that the Commission issue a public notice
containing illustrations of specific ways in which it intends to apply the
rule. It was not our intent in
proposing this rulemaking to infringe on any authorization for multiple-city
identification or to inhibit the broadcast of truthful statements about a
station's coverage area. These and
other suggestions and requests of parties submitting comments will be dealt
with more fully hereinafter.
n3
Comments were timely filed by 30 parties, some of which were multiple owners of
broadcast stations, and one of which was the National Association of
Educational Broadcasters. The other 29
were Scharfeld, Bechhoefer & Baron; Matta Broadcasting Co.; Truth
Publishing Co.; WFGM, Inc.; the American University; Broadcaster Services,
Inc.; New Hampshire-Vermont Broadcasting Corp.; Old Pueblo Broadcasting Co.;
KPOJ, Inc.; WPVL, Inc.; Independent Music Broadcasters, Inc.; King Broadcasting
Co.; Metromedia, Inc.; Storer Broadcasting Co.; Spartan Radiocasting Co.; the
law offices of Marcus Cohn; Charles River Broadcasting Co.; Bell Broadcasting
Co.; Northwest Publications, Inc.; Triangle Broadcasting Co., Inc.; Appalachian
Broadcasting Corp.; Midwest Radio-Television, Inc.; Fly, Shuebruk, Blume & Gaguine
(on behalf of seven licensees); Capital Cities Broadcasting Corp.; Newport
Broadcasting Co.; Nassau Broadcasting Co.; Knorr Broadcasting Corp.; the
Chamber of Commerce of Pine Bluff, Ark.; and Sparks Broadcasting Co.
4. Slightly
less than one-half of the comments oppose the rule. Many of these comments are based on misconceptions of its effect
in the areas described above; i.e., the use, where authorized, of multiplecity
identification and the right to broadcast accurate statements regarding a station's
coverage area. However, several
submitting opposition comments profess fear that the rule would impose many
other prohibitions upon the programming of stations whose licensed location are
suburban communities. Among the
consequences conjured up by this group are prohibitions against (a) the
broadcast of any public-service announcements or programs on behalf of
organizations located in the principal city; (b) the broadcast of programs
designed to serve the needs and interests of the entire coverage area of the
station; (c) the broadcast of advertising sponsored by businesses located in
the principal city. A few of those
submitting comments even profess fear that a suburban station would be required
to delete or severely restrict the amount of news broadcast about events
occurring in the adjacent principal city, lest the Commission hold that the
broadcast of such news would mislead the station's listeners as to its
location.
5. All such
fears in the terms stated above are groundless. We have repeatedly stated that a station has an obligation to
serve its entire coverage area, and the broadcast of public-service
announcements and [*401] other programming, including news, which
pertains to or is of interest to persons in its entire coverage area is not
inhibited by the proposed rule.
However, as set forth in section 73.30(a) of our rules, the primary
responsibility of a licensee is to "serve a particular city, town,
political subdivision, or community which [is] specified in its station
license." The further obligation to serve its entire service area may not
be used as justification to ignore the licensee's primary responsibility or to
mislead a station's audience as to its licensed location. n4
n4 The opposition
comments in this proceeding repeatedly cite Petersburg Television Corporation,
10 R.R. 567, but we said nothing in that decision to justify lack of service to
one's assigned community. In commenting
favorably on the proposal of one applicant to serve its entire coverage area,
we stated that the "proposed station, while serving the entire area, is a
Petersburg station," and that "This is not a case where one party, in
attempting to serve his entire coverage area, has made inadequate provision for
some important segment such as the community to which the station is
assigned."
6. In his
statement concurring with the notice of proposed rule-making in this
proceeding, Commissioner Johnson raised numerous questions going to our basic
allocation policies, and invited comments thereon. In response, some filing comments urge that we abandon the
principle of licensing stations to individual communities and permit them to
identify themselves with entire metropolitan areas. In support of this view, it is urged that the concept of
community service is anachronistic; that stations in metropolitan regions now
actually serve homogeneous areas rather than political entities; and that the
people in such metropolitan areas have the same interest. Although such arguments merit consideration,
we do not propose in this proceeding to consider the revision of our historic
concept of station allocation, but rather to determine whether a rule should be
adopted to prohibit misleading announcements regarding station location as
presently assigned. As Commissioner
Johnson recognizes in his concurring statement, we have in some areas permitted
a substantial increase of interference in order to grant applications for first
local transmission services. If we were
now to relieve such licensees of their local service obligations we might well
reconsider the need for so many facilities in some metropolitan areas.
7. Until
such time as we may consider revising our basic policy in allocating
facilities, we shall continue to license stations primarily to serve their own
communities and secondarily to serve their entire coverage areas. Although the contention has been made that
all metropolitan areas are now homogeneous and have the same programming needs,
we have been presented no evidence to support such a proposition. Indeed, the tremendous growth of suburban
newspapers in recent years would lead to the conclusion that, although many
suburbanites work in the principal city, they retain their interest in the
political, civic, cultural, social, and educational affairs of their home
communities.
8. In
releasing our notice of proposed rulemaking, we recognized that if such a rule
were finally adopted it would be desirable to issue a supplementary list of
examples of its application for the guidance of licensees. We did not release a list of examples at
that time because we believed that comments of interested parties in the
proceeding would be of assistance to us in preparing the examples. This has proved true. We have considered all suggestions and
questions of interpretation submitted in the comments, and are incorporating by
reference in the rule [*402] examples of ways in which we intend to apply
the rule to specific practices. We
previously followed this practice with respect to rules on sponsorship
identification and fraudulent billing practices, and it apparently has proved
helpful. The list of examples will be
enlarged as experience dictates. We
believe the examples already set forth will materially assist licensees in
achieving compliance, will serve to negate the criticism advanced in some
comments to the effect that the rule is vague and lacks clearly defined
standards. n5
n5 The
National Association of Educational Broadcasters, for some of the same reasons
advanced by commercial broadcasters and set forth in pars. 3 and 4 above, asked
that the Commission state that the amendments to the rules do not apply to the
operations of noncommercial educational stations. However, as we have explained, the rules would not prevent a
station from truthfully describing its service area, and, therefore, we believe
it would impose no hardship on noncommercial stations.
9.
Consideration of the comments submitted in this proceeding has confirmed
the belief expressed in the notice of proposed rulemaking that "the
proposed amendments would bring about an end to efforts to confuse or mislead
the audience as to the city to which a station is licensed, and that they are
appropriate and necessary means to carry out our functions under the public
interest standard of the Communications Act."
10.
Authority for the amendments herein adopted is contained in sections
4(i) and 303(r) of the Communications Act of 1934, as amended.
11.
Accordingly, It is ordered, That the amendments Are adopted, effective
December 4, 1967.
12. It is
further ordered, That this proceeding is Terminated.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE,
Secretary.
The Commission is here adopting a rule which
prohibits broadcast station licensee from making station identification
announcements, promotional announcements, or any other broadcast matter [that]
either lead or attempt to lead the station's listeners to believe that the
station has been assigned to a city other than that specified in its license.
At the same time, the Commission is issuing
interpretative rulings, attempting to offer concrete guidelines as to permitted
and proscribed practices.
There are a number of factors which together
generate the problem the Commission is here addressing.
1. It has
long been Commission policy to assign broadcast stations to specific
communities. In fact, the objective sought
in accomplishing the legislative directive in section 307(b) "to provide a
fair, efficient, and equitable distribution of radio service * * *"
include trying to assure to every community at least one AM, FM, and TV
station.
2. Although
stations are assigned to specific communities, and must mention those
communities in their "station identification" announcements, the
electromagnetic signals sent out by these stations do not stay within city
limits.
3. Stations
are sometimes authorized by the Commission to serve areas many times the size
of the community to which the station and license are assigned. The extent of area coverage is a function of
the power, antenna height, conductivity conditions, and other factors.
4. Stations
which provide coverage to more areas than their "primary community"
find it in their economic interest to identify with as large a population and
area as possible, which may be a city other than the one to which they are
assigned. This is especially true for
stations located near large cities.
Their "primary community" may be less than 50,000 people and
the large city over 1 million.
Thus, in the Commission's station allocation
scheme, licenses are assigned to specific and identifiable communities, but
these stations' signals often cover large areas that are not part of that
community. At the same time the
Commission's regulations declare that stations "will be licensed to serve
primarily a particular city, town, political subdivision, or community. * *
*" 47 C.F.R., section 73.30. The
Commission has also placed great emphasis on the responsibility of its
licensees to serve the "needs, tastes, and interests" of the
community it serves.
[*404] The proposed rule that the Commission adopts
today grew out of a proceeding and decision involving the circumstances I have
just described. KABL is an AM station assigned to Oakland, Calif. It also puts a substantial signal over San
Francisco. It sought to serve, and
identify with, San Francisco in the minds of its listeners and advertisers in
many ways. One was to add to its
station identification announcement (mentioning Oakland) the phrase, "in
the air everywhere over San Francisco." As a result of a hearing the
Commission concluded that, while the station "was attempting to create the
impression that KABL is a San Francisco station rather than an Oakland
station," there was no violation of Commission rules, since "by
announcing the station's call letters and the city in which it is licensed,
KABL complied with the literal provisions of the [station identification] rule
and nothing more is required." McClendon Pac. Corp., 5 F.C.C. 2d 855, 857
(1966).
While I concur in the adoption of this rule, since
it will serve to make more effective the allocation scheme that the Commission
has adopted, I am, nevertheless, concerned as to whether it will have any
discernible effect.
The rule provides that a station cannot "lead
or attempt to lead the station's listeners to believe that the station has been
assigned to a city other than that specified in its license." What does
this mean? Consider the following
examples from our interpretive rulings.
A suburban station can announce, along with its
station identification, that it is (1) "serving the Green River
Valley"; (2) "serving Millville, Rushville, and Oakville" (other
cities within its coverage area that are not principal cities); (3)
"serving the Tri-City area"; and (4) it can carry public-service
announcements for organizations in the principal city.
Such a station cannot, however, announce that it is
(1) "covering the greater Principal City area"; (2) "herein
Principal City"; (3) "in the air everywhere over Principal
City"; (4) "a symphony of sound designed for Principal City";
(5) "with enchanting music for Principal City, the world's most enchanting
city"; (6) "the tiger of Principal City radio"; (7)
"Principal City's best music station"; (8) "the good guys of
Principal City radio"; or (9) broadcast "vignettes referring to
places or historical events associated with Principal City" if it is
"evident that they are designed to create the impression that [the
station] is assigned to or located in Principal City." (This, it seems to
me, says little more than that "if it is evident [to the FCC's staff,
presumably] that the announcement violates the rule, it will be found to
violate the rule" -- a standard of little assistance to a rule-abiding
broadcaster.)
It is not altogether clear that these
illustrations, taken together, provide as much interpretation of the rule as
one might hope for. I believe they
fully illustrate, however, that our rule does not go to the heart of the
problem it purports to address.
I must admit to considerable disappointment at the
Commission's refusal to consider the more important policy implications of the
problems it is here trying to solve, and its cursory dismissal of the
thoughtful comments that were filed in this proceeding.
[*405] The Commission notes that, * * * comments
urge that we abandon the principle of licensing stations to individual communities
and permit them to identify themselves with entire metropolitan areas. In support of this view, it is urged that
the concept of community service is anachronistic; that stations in
metropolitan regions now serve homogeneous areas rather than political
entities; and that the people in such metropolitan areas have the same
interests. Although such arguments
merit consideration, we do not propose in this proceeding to consider the
revision of our historic concept of station allocation, but rather to determine
whether a rule should be adopted to prohibit misleading announcements regarding
station location as presently assigned. * * * If we were now to relieve such
licensees of their local service obligations we might well reconsider the need
for so many facilities in some metropolitan areas.
Until such time as we may consider revising our
basic policy in allocating facilities, we shall continue to license stations
primarily to serve their own communities and secondarily to serve their entire
coverage area.
Thus, while the Commission itself recognizes the
paradox between local service conceived in terms of the assigned community and
local service in terms of the area covered it refuses to address these
issues. What do we mean by "local
service" on the part of a suburban station? Why is it important that such a station identify itself with the
suburban community to which it is licensed?
Are "local service" responsibilities the same for all
licensees, whether in a large metropolitan area or a rural community? I have recently tried to address some of
these questions in a speech to the Texas Association of Broadcasters. "Broadcasting's Local Service: A
Response to Technological Challenge," FCC No. 6180, September 25,
1967. And see my earlier expression of
views in this rulemaking proceeding, 6 F.C.C. 2d 805, 807 (1967) (concurring
opinion), and comments about our procedures for reviewing station's local
service performance at license renewal time, 7 F.C.C. 2d 687, 695.
Some of these implications and policy considerations
were very thoughtfully and creatively discussed in comments on the proposed
rule filed by the law offices of Marcus Cohn as amicus. (Cohn argued the case
for KABL in the decision that was a moving force for this rule.) His comments
correctly point out the difference between local service and station
identification, as well as the distinctions between service in a fairly remote
rural community and that required of a station assigned to a suburb, but
serving in a market with perhaps 30 other radio stations. The comments also point out the competitive
disadvantage that such stations would find if they were restricted to serving
only their assigned communities. In effect
these suburban stations add to the service available (and the competition) in
the very large markets where having a station is very valuable.
Perhaps the best illustration of the present
unsatisfactory results of the Commission's "historic allocation
policy" is that of an AM-FM combination station in a large metropolitan
area. The FM is assigned to the
principal city and the AM is assigned to a nearby suburb. Both stations carry exactly the same
programming and physically cover roughly the same area. Thus, the "local programming" of
the two stations is completely irrelevant to where the station is, in fact,
technically assigned. Many instances of
such "local service" existed prior to the Commission's AM-FM 50
percent duplication ruling. And [*406]
many situations exist today where, although the hour-to-hour programming
of the AM in the suburb and its FM in the city are different, the programming
is actually interchangeable -- the community assignment having no discernible
effect on programming decisions.
In broadcasting's early days most stations' service
areas were their assigned communities and their outlying rural areas. Their studios and transmitters were located
there. Their programming was,
necessarily, directed to their local communities. The owners personally knew many of their listeners. They were,
often, the only (or one of the very few) stations serving their communities --
thus dictating a balanced program service.
Today, the stations principally involved in this
rulemaking are assigned to suburban communities located in large metropolitan
areas. Their signals often reach all
but a small portion of their metropolitan area. The locations of their studios and transmitters are almost
irrelevant, and are generally unknown to most local residents. Their programming formats are designed to
capture the largest possible splinter share of the total metropolitan market:
All news, classical music, rock-and-roll, country-and-western, popular
standards, sports, talk shows, or some combination.
I am not now criticizing the programming judgments
of these licensees, nor saying that we should have fewer stations serving large
communities. But I do not think we
should play games with "local service," insisting our decisions turn
on the suburb to which a station is licensed.
Especially in large metropolitan areas can local service perhaps best be
thought of in the context of the entire area, and programming decisions best be
made in the context of the total service available to the entire area. It seems to me the Commission ought to recognize
that different allocation, licensing, and renewal policies and procedures may
be appropriate for metropolitan areas and rural areas. Concepts of local service and identification
of stations with communities for metropolitan areas might be to the largest
political or geographic division within the coverage area of a station -- such
as the greater Washington area, or the San Francisco Bay area -- rather than
perpetuate the charade that a station is somehow assigned to one of the bedroom
communities and "primarily" serves that community when, in fact, it
is aiming its programming to a specific segment of the population in a large
metropolitan area.
Such distinctions are relevant to national station
allocation patterns as well as to programming standards. If, in fact, suburban stations are serving
the central city they should be credited to it in allocation schemes. There may, in fact, be very little reason
for allocating stations to suburban cities at all -- excepting, perhaps, to a
truly local suburban group, seeking a station with power limiting its coverage
area to the suburb, proposing truly suburban public-service local programming.
But until we conduct our analysis in those terms, we might as well make the
best of our prior conclusions, and I concur in the promulgation of this rule.
DISSENTING OPINION OF COMMISSIONER LEE LOEVINGER IN
WHICH CHAIRMAN ROSEL H. HYDE JOINS (REGARDING BROADCAST STATION IDENTIFICATION
RULE)
The Commission is now adopting a rule which
provides, in substance, that nothing shall be said over a broadcasting station
which might lead a listener to believe that the station has "been assigned
to a city other than that specified in its license." This seems to me to
be another rule adopted for the sake of regulation rather than because of any
real public need or purpose. While
there have been a few cases over a period of years in which the Commission has
had occasion to criticize the form of station identification announcements,
there is no showing whatever either that there is any widespread practice which
is objectionable or that anyone has been misled or injured in any way even by
the few instances that the Commission has found objectionable.
The rule now adopted is broad and vague in its
terms and will undoubtedly give rise to another burden of regulatory activity
which will keep the Commission staff busy, will require numerous
interpretations and rulings, will provide another bureaucratic requirement for
broadcasters to worry about, and will give the Commission another [*403]
threat to invoke against broadcast licensees. No public benefit from all this is apparent.
Furthermore, the considerations suggested by
Commissioner Johnson's opinion seem to me to argue strongly against adoption of
the rule at this time. The very
foundation of the single-city identification is questionable in this day of
metropolitan area growth and suburban living and commuting. The present trend is toward metropolitan
area unification, rather than division.
Insofar as this rule has any social effects they will be exerted in the
direction of a return to the past, rather than in aiding progress toward the
future. The rule is unwarranted by
public interest, public need, or public convenience, and is no more than
regulation for its own sake. I dissent.