In re Application of
ACCOMACK-NORTHAMPTON BROADCASTING CO., INC., TASLEY, VA. For Construction
Permit for New FM Station
File No. BPH-5692
FEDERAL COMMUNICATIONS
COMMISSION
8 F.C.C.2d 357 (1967); 10
Rad. Reg. 2d (P & F) 142
May 24, 1967 Adopted
The Commission, with Commissioner Wadsworth absent, and Commissioner Johnson dissenting and issuing a statement
in which Commissioner Cox joined insofar as the issue of commercial policy is
concerned.
[*357] Granted a construction permit to the Accomack-Northampton
Broadcasting Co., Inc., for a new class B FM station to operate on channel 277
(103.3 Mc/s), in Tasley, Va.
DISSENTING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
REGARDING THE ACCOMACK-NORTHAMPTON BROADCASTING CO., INC., APPLICATION FOR
AN FM STATION IN TASLEY, VA.; COMMISSIONER COX JOINS IN THE DISSENT INSOFAR AS
THE ISSUE OF COMMERCIAL POLICY IS CONCERNED REGLATING
COMMERCIALIZATION PRACTICES
I would concur in the grant of this application for the only FM station
in Tasley, Va., to the owner of the only AM station, with the qualifications
and concerns expressed in the similar case of Paris-Bourbon County
Broadcasting, Inc., 6 F.C.C. 2d 894, 9 P&F Radio Reg. 2d 122 (1967)
(concurring statement), if the only issue were concentration of control of mass
media in small communities with no prospects for competing applications.
However, examination of the quantity of advertising proposed by this applicant
leads me to dissent.
The standard generally accepted for such a station -- by the
Commission's general questionnaire (FCC public notice No. 66-923, Oct. 24,
1966) and the National Association of Broadcasters Code of Good Practice -- is
a maximum of 18 minutes of commercials per hour (roughly 1 out of every 3
minutes). Although this applicant appears at first blush to comply with
the 18-minute standard, a careful reading of its conditions and exceptions indicates
its standard will be, in fact, "not normally expected to exceed" 33
minutes of commercials per hour. Here is how the applicant expresses its
standard: The maximum amount of commercial matter in any 60-minute segment
which the applicant normally proposes is 18 minutes. The applicant
further states that in order to fulfill its obligations to the public and
maintain its economic health, the proposed station will find it necessary to
increase the percentage of commercial time during special occasions such as
before elections, [*358] Christmas, Old Timers Days, Thanksgiving, during
vegetable harvest time, and during periods immediately after an outage due to
equipment failures; however, during these periods the commercial time is not
normally expected to exceed about 55 percent in any hour. It is not
normally expected to occur on more than about 2 or 3 days in any typical
composite week.
I feel constrained to make the observation that, while the issues posed
by this case are deep and broad, under our present procedures the outcome in
the individual case is really of relatively little significance.
Some would agree with this observation and conclude that, therefore,
the Commission should not regulate advertising content at all, leaving the
matter wholly in the hands of the station operator. The "public
interest" served by such a role is presumably the listeners' option to
turn either his station selector knob or his on-off switch. The
administrative ease offered by such a course is appealing. The administrative
responsibility I find less attractive.
In any event, such cases now come before us; they must be responsibly
disposed of.
Few issues in the history of broadcasting have created as much concern
and as little consensus as what to do about advertising.
In the 1920's industry and Government representatives alike expressed
concern lest this new information medium of radio be turned to private profit
at public expense. Congress gave the matter its attention.
Today the industry recognizes in its Code of Good Practices that
commercial practices are relevant to broadcasting in the public interest.
Congress -- even those Members concerned about Commission rulemaking
regarding commercial practices -- recognizes the propriety and desirability of
some form of Commission regulation of advertising.
The Commission has, since its earliest days, regulated advertising
policies -- and been consistently encouraged and supported by the courts in
doing so.
Finally, even if one adopts the slogan that "the public interest
is what interests the public," the Commission's mail would seem to confirm
that little interests the listening public more than commercial practices.
The principal question, therefore, is not whether, but what to do about
advertising in broadcasting -- and who should do it. Even a Commission
decision to do nothing (or to delegate to the industry), if that be its view,
ought to be adequately analyzed and explained as a form of Commission action in
terms of the public interest. Many relevant questions are, however, for
me, as yet unanswered. I believe they should be addressed in something
other than a case-by-case environment. What is the FCC doing?
Why? At what price? To produce what result? What alternative
results are there to the same goal? Why is our present way the best?
Recently I characterized the Commission's fulfillment of its
responsibility to uphold the public interest in the quantity of broadcast
advertising in these words:
Regulation of commercial content by the FCC has always been a concern
to you (the broadcasting industry). It requires a substantial effort by
the Commission staff. And yet, the FCC has not only failed to enforce
standards any stricter than your own, it has actually tended to depress the
broadcasting industry's code standards to lower levels. It was only by
dint of industry pressure that the FCC raised its standards from 20 to 18
minutes of commercials per radio hour to comply with your code. Now the
FCC is eroding standards once more by waiver and exception, and I gather
the [*359] code may give up the fight in despair. Given this
FCC record the public interest might be better served if the industry were left
to regulate itself. If that be the case, and there be no hope for
reforming the agency, even basic principles of cost-conscious management would
dictate the FCC invest its staff's time elsewhere.
"Reevaluating the Regulatory Role," speech to the Iowa
Association of Broadcasters, May 13, 1967. It was recently reported
("Broadcasting," Mar. 6, 1967, pp. 36-37):
In effect, he [Howard Bell, NAB code director] complained that the
Commission had forced the NAB to make its 18-minute rule more flexible.
"We were in the posture of being rigid and inflexible? on the time limits
allowed, "and the FCC was more permissive," he said.
At the time I had no idea the characterization would so soon be borne
out. Here is a perfect example. It is disgusting and discouraging,
hilarious and serious, but seems to be firmly fixed as Commission policy.
See also Renewal of Standard Broadcast Station Licenses, 7 F.C.C. 2d 122, 130,
9 P&F Radio Reg. 2d 687, 695 (1967) (dissenting opinion), and Station Inspection Forms Revised, FCC public notice No. 99626, April 25, 1967
(dissenting statement).
When the broadcasting industry and Congress were first considering
Federal Regulation of broadcasting it was Secretary of Commerce Herbert C.
Hoover who said, "It is inconceivable that we should allow so great a
possibility for service to be drowned in advertising chatter." Who in the
1934 Congress would have predicted that its emphasis on "the public
interest" in the then new Communications Act would be used to sanction 33
minutes of commercials per broadcast hour a mere 33 years later? Can the
public be offered nothing save the realization that, at this rate, it will be
1994 before the radio hour is totally consumed with commercials?