STATION INSPECTION Forms, Revision
of Public Notice
April 25, 1967
JUDGES:
Commissioner Cox abstained from voting and Commissioner Johnson dissented with a statement.
OPINION:
STATION INSPECTION FORMS REVISED
The Commission,
by Minute Action, has voted to delete certain categories of non-technical
questions from standard station inspection forms.
Commissioner
Cox abstained from voting and Commissioner Johnson dissented with a statement.
DISSENT:
STATEMENT OF COMMISSIONER NICHOLAS
JOHNSON REGARDING DELETION OF SEPARATE INSPECTION FORM FOR NON-TECHNICAL
REQUIREMENTS
The
question before us is relatively simple. Is the FCC adequately enforcing the
regulations it has promulgated? I think not. Here's why.
What are
the regulations involved?
The Federal
Communications Act and the Commission's rules impose numerous requirements and
standards with which broadcast stations are supposed to comply. For convenience
these requirements and standards are sometimes distinguished as
"technical" and "non-technical." Examples of the very large
number of technical requirements are those prescribing the allowable deviation
from authorized operating power, 47 CFR § § 73.57, .267(b) (1966),
requiring that all high voltage equipment be suitably insulated, 47 CFR §
73.40(b)(3) (1966), and requiring the cleaning and painting of antenna towers,
47 CFR § 17.39 (1966).
But it is
the non-technical requirements with which we are presently concerned. They are
less numerous and possibly less obvious, but certainly no less important. Here
are some of the principal ones. Stations must identify themselves by call
letter and location at times specified in the rules. 47 CFR § § 73.117,
.287, .587, .652 (1966). Direct or indirect sponsors of all matter broadcast
must be explicitly identified. 47 CFR § § 73.119, .289, .654 (1966).
Broadcast of lotteries or advertisements of lotteries are forbidden. 47 CFR §
§ 73.122, .292, .656 (1966). Thorough program, operating, and maintenance
logs must be kept by each station. 47 CFR § § 73.111-.116, .281-.286,
.581-.586, .663-.664 (1966). Stations must keep records of all requests for
time by candidates for public office and must treat all such candidates equally
in making time available. 47 CFR § § 73.120, .290, .590, .657 (1966). In
addition there is the general duty, not elucidated by the rules, "to
afford reasonable opportunity for the discussion of conflicting views on issues
of public importance" under Section 315(a) - the so-called "fairness
doctrine."
This is not
the occasion to discuss the wisdom of any of these rules and standards. As I
have indicated in other contexts, it is my firm belief that the Commission
should promulgate and retain rules only when they serve a useful purpose. See American
Television Relay, Inc., 6 FCC 2d 837, 843 [9 RR 2d 800] (1967) (statement
concurring in part and dissenting in part - cable television rules); Sierra-Pacific
Radio Corp. (KOSO), 7 FCC 2d 61, 62, 9 RR 2d 497, 499 (1967) (dissenting
opinion - station "location" on mountains). I wish to emphasize this.
I believe the public, the broadcasting industry, and the FCC would be
substantially served by periodic revision, elimination, reevaluation, and
simplification of the Commission's rules. But that issue is not now before us.
The Commission's action today presupposes the desirability of our non-technical
rules. The Commission concerns itself only with the rules' enforcement. So,
therefore, will I.
How are non-technical
regulations now enforced?
In order to
enforce both the technical and non-technical regulations the Commission's staff
engages in a variety of activities.
(1) When seeking license renewals
licensees must submit program logs, programming proposals, and answers to
questions regarding compliance with Commission rules. This material is scanned
for evidence of failure to comply with technical and non-technical regulations.
(2) The Commission receives and
investigates complaints from the public and interested parties. I will discuss
this function more fully later.
(3) Finally, the Field Engineering
Bureau of the Commission engages in "renewal inspections" of about 54
per cent of the 7,000 broadcasting stations in the United States at some time
during the three-year license period of these stations (about 1,200 stations a
year). The field inspectors take with them a checklist of items to be inspected
at each station. Most items involve technical requirements, but some attention
is given to non-technical standards as well. In the course of this renewal
inspection the station's technical performance will be monitored by FCC trucks
with receiving apparatus. If, in the course of this monitoring, any
non-technical violations are uncovered, they may be investigated further and
reported to the Complaints and Compliance Division. The Field Engineering
Bureau informs me that about 25 man years are devoted to the task of station
inspection and monitoring, that a single station inspection takes from two
hours to two days, and that approximately eight per cent of the time is devoted
to the non-technical items.
If
technical or non-technical violations are uncovered, several sanctions are
available to the Commission. (1) Minor transgressions can be corrected at the time
of inspection. More serious violations may be the subject of (2) an oral or (3)
written warning, or (4) a "forfeiture" (as the Commission calls its
fines) of up to $ 10,000. (We have recently, for example, assessed forfeitures
of as much as $ 5,000 for failure to paint antenna towers.) (5) Short term
renewal (for example, a one-year rather than a three-year license), with the
insistence that prohibited conduct be eliminated, is sometimes utilized, and,
of course, (6) nonrenewal or (7) revocation are available as ultimate
sanctions.
How has
this procedure been changed by today's action?
What the
Commission has just done is to accept the recommendation of its Field
Engineering and Broadcast Bureaus that a separate field inspection form which
deals with non-technical requirements be eliminated. This form required that
the inspector monitor and record the station's broadcasts before inspection,
and on the basis of that pre-inspection monitoring, determine whether the
station was identifying itself correctly (including whether it was seeking to
identify with a city other than where it is licensed), identifying its sponsors
correctly, or broadcasting lottery information. He would subsequently use this
information to determine if the station was maintaining its logs correctly. The
form also required the inspector to determine if a complaint file was
maintained (and whether there were any unresolved complaints of substance), if
complete records on requests for sale of political time were maintained, if
news broadcasts logged as "live" were composed more than half of
material from a teletype machine (under an obsolete Commission rule), and some
information on the degree of supervision exercised by the licensee. To some
extent the items from the eliminated form are covered by another form which the
inspector uses when he is at the broadcast station. While there he checks to
see that program logs carry the required information, and that a political file
is maintained. It is clear, however, that some items will no longer be checked
at all, and that there will be no basis whatsoever for comparison between what
goes over the air in fact and what is recorded by the station on its forms.
Why are the
more thorough investigations to be terminated?
We are told
that the non-technical inspections are time-consuming (roughly eight per cent
of the total investigating time), and that a higher percentage of licensed
stations can have technical inspections as a result of the time saved (roughly
60 per cent over every three-year period rather than 54 per cent). The
engineers are principally trained for investigating technical matters, the form
is poorly written and to some extent duplicated, the Broadcast Bureau does not
find useful the information provided by the investigating engineers, and the
investigators are not coming up with much anyway. If this be the case (and I
have no basis or reason for questioning these assertions), there is some
question why we undertook the procedure in 1961 and continued it so long. There
certainly can be little criticism of the staff for identifying the problem and
recommending modification of the practice.
Thus, my
disagreement with the course today recommended by the staff and adopted by the
Commission is not the change in present practice. My concern is that a vitally
important Commission responsibility - enforcement of regulations - is now to
receive even less attention than before. And the Commission's decision to do so
has been made, in my judgment, without fully considering the only context in
which it effectively can be evaluated: our total program of enforcement and
complaint-investigation procedures; the money and manpower resources available
and invested; the alternative uses of these resources; the effectiveness of
alternative enforcement programs; the probabilities, costs and consequences of
an increase in violations; and the prospective effect upon broadcasters and
public alike.
How does
the Commission propose to enforce its non-technical regulations?
When the
staff was asked this question, the Commission was told - and accepted - that
investigations of complaints from the public would be an adequate substitute.
There are,
in my judgment, glaring deficiencies in this alternative.
(1) The public is not now aware of
its newly-imposed responsibility. We have gone full circle: the people looked
to their elected representatives, Congress, to exercise responsibility over
communications; Congress established the FCC to deal with the problems and
passed to it the rather broad responsibility to act in "the public
interest, convenience and necessity"; now the Commission has turned back
to the people the responsibility to investigate and report violations of FCC
regulations. The public may be fully qualified and willing to perform this
function, but it seems to me we have the responsibility to see that the public
is fully and effectively informed of this new obligation. We cannot rely upon
the off-chance that great numbers of American citizens are actually reading the
United States Code, Federal Register, the Code of Federal Regulations, or the
FCC's Reports and Public Notices. In any event, some regulations (such as the
keeping of program, operating and maintenance logs, and records of requests for
time by political candidates) will be difficult or impossible for the public to
enforce without assuming the unreasonable burden of making station visits.
(2) Even if we did have reason to
believe the public informed, inclined, and able to report to us the violations
of our regulations, we are even less equipped to investigate complaints than we
are to inspect stations. The Complaints and Compliance Division of the
Commission informs me that it receives some 14,000 complaints each year. (Each
year the Field Engineering Bureau receives an additional 31,000 complaints
involving signal interference to broadcasting stations.) As one might suspect,
many of these letters are frivolous or are based on misunderstandings of the
Commission's requirements. But of those complaints deemed worthy of
investigation, the Division is able to detail field investigators to only about
40 each year, who spend between two days and a month on each complaint
investigated. The Complaints and Compliance Division used to have no more than
six field investigators to follow up on complaints regarding 7,000 American
broadcast stations. As if that were not ludicrous enough, the staff has
recently been cut to three because of backlogs elsewhere. As field investigators
work in pairs, I presume that means the United States Federal Communications
Commission is now sending out a force of two men to cover a beat as vast as the
2,314,000,000 acres that are the United States. What is needed? For a
beginning, and as a minimum, the head of that Division informs me he would
pursue at least twice the complaints he now does if adequate personnel were
available.
What are
the alternatives?
(1) The staff discussed, but
rejected, the possibility of creating a special inspection force for
non-technical regulation compliance. So would I. Given the obvious limitations
on FCC personnel, such a course would presently appear to be unwarranted
duplication and expense. With a regulatory responsibility that spans a
continent, 7,000 stations, and a variety of complex matters the greatest
possible use of generalists would seem desirable.
(2) The staff, and Commission,
propose greater reliance on complaints from the public. If such a scheme is to
be effective it seems to me to require meaningful public awareness of its
responsibility, and perhaps a many-fold increase in FCC investigative staff.
(3) If the present forms and
investigations are unsatisfactory, we might at least explore the possibility of
improving them. It very well might be that a training program of modest
proportions would enable the engineers, with ease and dispatch, to better
perform the necessary minimal inspections of non-technical regulation
compliance in ways that would produce information of use to the Broadcast
Bureau. The form apparently is in need of revision. Presumably it is
redeemable. This course seems to me to hold the most promise.
(4) We also might pursue the greater
use of questionnaires to station managers - or even informal telephone calls -
as the most cost-effective way of gathering information with the least
inconvenience to those operating the stations.
My point is
simply that the question of the acceptable level of compliance with FCC
regulations should be addressed, and various enforcement measures evaluated.
What moral
lies at the end of this saga?
It seems to
me this story illustrates, as well as any, the extent to which the
Commissioners and staff of the FCC are struggling to serve our society's most
fundamental need - effective, efficient, and satisfying private and mass
communications systems - against truly impossible odds. Is it not obvious that
we are lacking in the rudimentary information, analysis, staff, funds, public
understanding and support necessary to serve the industries we regulate - let
alone the long forgotten and never defined "public interest"?
It may be
that the Commission's action today was unwise. I think so. My colleagues think
not. That is the end of the matter.
But perhaps
a more fundamental issue is involved. How, under these conditions, could the
Commission possibly undertake a more adequate inquiry into the
"right" decision, or begin to put it into effect?
The
Commission has many problems - internal as well as those of national policy.
And I fully appreciate that the resolution of each is enormously complicated by
the agency's severely restricted budget. There is an obvious need for greatly
increased expenditures in several areas of Commission activity. And yet, before
additional funds can be legitimately requested or wisely used a most thorough
definition and reevaluation of the Commission's mission and programs is
warranted. In each instance where the Commission takes or contemplates action
it is necessary to ask, "What exactly are we doing, and why?" Need it
be done at all? How might it be done more effectively and efficiently? What are
we not doing that ought to be done in the area? These questions must be asked,
and answered, agency-wide. The Budget Bureau calls the process "program
planning and budgeting."
It may very
well be that some of the regulations involved in this decision ought to be
repealed. That would be welcome relief indeed for taxpayer, broadcaster, and
staff alike. But if we are to virtually eliminate our present inspection
procedures for non-technical regulations I believe the elimination should
follow, rather than precede, a thorough analysis of the purpose of the
regulations involved and the alternative means by which they might be enforced.
Inadequate, haphazard, or erratic enforcement of regulations is fully as
intolerable to the broadcaster as to the public.
It is no
sin to be ill-equipped to do your job. But it does, I believe, impose a
responsibility to make the condition known to your superiors. There is no way
the public can know what the FCC staff - and especially the Commissioners -
know so well unless we tell them. The public may choose not to listen, or to
listen but not act. But for us not to tell them is, it seems to me, derelict.
It is also unfair to that vast majority of FCC employees who would sincerely
like to provide more effective service to the public and the broadcasters.
To those
who might counsel complacent and "respectful" silence to a
Commissioner of my views, I would answer that no disrespect is present. I
believe our inadequacies more appropriately evoke sentiments of pathos and
sympathy than anger, censure, or ridicule - although kindly laughter may
provide more relief than tears. And I believe that to recognize them frankly
will ultimately serve to improve, rather than weaken, this agency's
effectiveness in serving the American broadcasting industry and its very
substantial public.