In Re AMENDMENT OF SECTION 74.1103(g)(2) OF THE COMMISSION'S
RULES AND REGULATIONS
Docket
No. 19320
31 F.C.C.2d 844
RELEASE-NUMBER: FCC 71-982
September 30, 1971 Released
Adopted September 24, 1971
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING
IN PART AND ISSUING A STATEMENT; COMMISSIONERS H. REX LEE, WELLS, AND
HOUSER ABSENT.
OPINION:
[*844] 1. Notice
is hereby given of proposed rule making in the above-entitled matter.
2. On April 9, 1971, Camellia
City Telecasters, licensee of Station KTXL-TV (
The [CATV] system need not delete
reception of a network program which is scheduled by the network between the
hours of 6 and 11 p.m. Eastern Time, but is broadcast by the station requesting
deletion, in whole or in part, outside of the period which would normally be
considered prime time for network programming in the time zone involved.
Camellia
requested a declaratory ruling that the above-quoted section is applicable not
only to network programs, but also to programs nationally syndicated for
release on a same-day basis.
3. In support of its request,
Camellia City argued that any program that is successful enough to be placed on
a number of television stations throughout the country will have the same high
degree of popularity as programs scheduled by networks in prime time.
Yet, numerous viewers may be deprived of the opportunity to watch these
programs in prime time, which as a practical matter is the only viewing time
available to people who work during daytime hours, because a higher priority
station on a CATV system schedules the program at a time when its audience
consists primarily of housewives and children. n1
n1 Camellia points out, for example,
that certain CATV systems carrying KTXL-TV which shows "the David Frost
Show" during prime time, and certain higher priority stations, which air
this show during non-prime time, grant exclusivity to these higher priority
stations taking the position that the network programs referred to in Section
74.1103(g)(2) do not include syndicated programs.
4. We find
5. Pursuant to applicable
procedures set out in Section 1.415 of the Commission's Rules and Regulations,
interested parties may file comments on or before November 8, 1971, and reply
comments on or before November 18, 1971. All relevant and timely comments
and reply comments will be considered by the Commission before final action is
taken in this proceeding. In reaching its decision in this proceeding,
the Commission may also take into account other relevant information before it,
in addition to the specific comments invited by this Notice.
6. Authority for the
amendments proposed herein is contained in Section 4(i) and 303(r) of the
Communications Act of 1934, as amended.
7. In accordance with the provisions
of Section 1.419 of the Rules, an original and 14 copies of all comments,
replies, pleadings, briefs, and other documents shall be furnished the
Commission. Responses will be available for public inspection during
regular business hours in the Commission's Broadcast and Docket Reference Room
at its Headquarters in
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY:
JOHNSON (IN PART)
DISSENT:
OPINION OF COMMISSIONER JOHNSON CONCURRING
IN PART AND DISSENTING IN PART
The Commission's rules governing
cable television currently provide that a cable operator cannot cablecast a
prime time network TV show from an imported station if the show also appears on
a local TV station the same day. n1
The purpose of this rule is to provide local TV broadcasting stations
protection from the competition introduced by cable TV.
n1 47 C.F.R. § 74.1105(g)(2)
(1971).
This case arises because we have not
made clear whether or not this rule also applies to syndicated TV shows which
are also seen across [*846] the country on a same-day basis, such
as The David Frost Show. Historically, syndicated shows have often been
designed and distributed in such a way that individual segments would be seen on
different days in different parts of the country. The growth of same-day
syndicated TV shows has been increased recently, and will be more by our rule
making opening up the prime time hours to more non-network programming.
Camelia City Telecasters, licensee
of Station KTXL-TV,
If we decide that the rule applies
to syndicated shows, we will have broadened the opportunity of people "on
the cable" to watch nationally-syndicated shows during prime time when the
shows are most topical -- the day they are meant for national showing.
I agree with the majority's finding
that Camelia City Telecaster's argument in favor of such a declaratory ruling
is "quite persuasive," and concur with its adopting a Notice of
Proposed Rule Making putting forward the change.
However, I dissent as to the
majority's decision not to dispose of this issue through the issuance of a
declaratory ruling.
It is quite clear that it is within
the Commission's power to issue a declaratory ruling in this case, inasmuch as
it would achieve the goal of "removing uncertainty" spelled out in
the Commission's rules. n2
n2 47 C.F.R § 1.2. (1971).
I am not persuaded by the majority's
protestations that "it would be misleading to the public" to hold
that Section 74.1103(g)(2) applies to syndicated shows sent to stations around
the country on a daily basis primarily for prime time showing. I believe
it would be less misleading to the public if we were to act forthrightly in
this case and allow for greater viewing opportunities for those on the CATV
system.
There is n indication of harm to the
TV station which has decided to televise the show during non-prime time hours;
I cannot see much difference between a show that happens to be sent to a local
station through syndication and one which originates from an organized
network. For the viewer, the shows are often indistinguishable. For
people who work during the day, and are on the cable, it certainly would appear
arbitrary if they were not able to see a show during prime time just because it
was shown during the day on a local TV station.
Of course, I am not intimating that
TV stations or any interested party do not deserve their day in court.
They have had it in this case. Other parties will have it in the rule
making. It is a fact, however, that in this case we would be perfectly
within our authority to issue a declaratory ruling validating the argument that
we have herein labeled "quite persuasive." I believe the public
interest compels that decision, and therefore dissent.
APPENDIX:
APPENDIX
A. Part 74 of Chapter I of
Title 47 of the Code of Federal Regulations is amended as follows:
1. Section 74.1103 is amended
to add a note after par (g) (2) as follows:
§ 74.1103 Requirements
relating to distribution of television signals by community antenna television
systems.
* * *
(g) * * *
(2) * * *
Note: The term "network
program" includes programs nationally syndicated for release on a same-day
basis.