In the
Matter of REQUESTS BY THE THREE NATIONAL TELEVISION NETWORKS FOR WAIVER OF
SECTION 73.658(k) OF THE COMMISSION'S RULES (CERTAIN SPORTS EVENTS AND OTHER
INDIVIDUAL PROGRAMS)
FEDERAL COMMUNICATIONS COMMISSION
32 F.C.C.2d 58
RELEASE-NUMBER: FCC 71-1037
October 12, 1971 Released
Adopted October 6, 1971
JUDGES:
BY THE COMMISSION: CHAIRMAN BURCH
ABSTAINING FROM VOTING; COMMISSIONER BARTLEY
CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT IN WHICH
COMMISSIONER JOHNSON JOINS; COMMISSIONER WELLS CONCURRING IN PART AND
DISSENTING IN PART AND ISSUING A STATEMENT.
OPINION:
[*58] 1. The
Commission here considers various requests for waiver of the "prime time
access" rule, Section 73.658(k) of the Commission's Rules, which, in
general, after October 1, 1971, limits television stations in the top 50
markets to the presentation of no more than three hours of network programming
each evening during prime time. "Prime time" is defined as 7 to
11 PM, local time, except 6-10 PM in the Central time zone. The present
document deals with various requests filed by the three national networks n1 during the last three months, seeking waivers of the
three-hour limitation in connection with various sports events and, for NBC, a
request also for waiver in connection with two individual programs generally
carried by NBC stations simultaneously with their occurrence: the motion
picture Academy Awards program in April 1972, and the finals of the "Miss
America" contest in September 1972. None of the requests was
opposed. Other requests by networks and stations are discussed in other
documents adopted today.
n1 American Broadcasting Companies,
Inc. (ABC), Columbia Broadcasting System, Inc. (CBS) and National Broadcasting
Company, Inc. (NBC).
2. NBC and CBS requests
concerning individual baseball and football games and one golf tournament
("runover" programs). In its request filed August 31, 1971, NBC
requests waiver in connection with the presentation of various professional
baseball and football games between October 1, 1971 and January 1972, three
Saturdays of NCAA basketball in March 1972 and the Bob Hope-Golf Classic on a
Saturday and Sunday in February 1972. This sports coverage normally
concludes before prime time begins, since all of the baseball and
football [*59] games begin at about 4 PM or earlier (E.T.) n2, the latest of the basketball games is expected to
begin at about 5 PM (E.T.) and last less than two hours, and the golf coverage,
beginning at 5 PM (E.T.) is expected to be over by about 6:30. However,
NBC points out that these games may involve overtime, "sudden death"
playoffs, extra innings, etc., or possibly weather delays, and therefore
conceivably could run a few minutes into prime time. Since it wishes to
be able to present its regular three hours of prime time evening programs on
these days, it requests a waiver for the Eastern and Central time zone to the
small extent it may be necessary. The waiver is requested for any game
starting at about 4 PM E.T., and one NCAA basketball double header starting at
3 PM E.T. NBC also requests a waiver, in the event it is necessary, in
connection with one World Series baseball game which will be broadcast at
night, together with a 30-minute pre-game show, the former starting no earlier
than 7:30 PM (E.T.), and the two preempting regular network shows for that
night. The CBS request filed July 9, 1971, is for similar situations in
professional football only (about 11 dates).
n2 The baseball and football
situations include 20 dates, all Saturday or Sunday except two World Series
games. On two or possibly three Sundays in October, the programming will be
World Series games starting at about 1 PM E.T., followed by pro football at
about 4 PM E.T., or some variation of that arrangement.
NBC estimates that baseball games
take normally about 2 1/2 hours, pro football 2 3/4 hours, and basketball no
more than two hours. It is stated that of 27 pro football games presented
by NBC in the fall of 1970 (starting at about 4 PM E.T.), only one ran after 7
PM E.T., and that by less than 10 minutes.
3. This type of situation was
recognized in the May 1970 decision adopting the "prime time" rule
(Report and Order in Docket 12782, 23 FCC 2d 382), where we stated in Footnote
35 that, while live sports events were not exempted as such from the rule, the
Commission would consider requests for occasional waivers where such events
normally conclude before the beginning of prime time but may run into it (and
also for events beginning in prime time and usually less than three hours but
occasionally more). The CBS request, and the NBC requests mentioned
above, clearly fall within this principle, and accordingly we are granting
waivers in these cases as requested.
4. Requests by ABC in
connection with individual events. ABC requests waiver in connection with
sports events on twelve days (all Saturday or Sunday) from October 9, 1971, to
February 6, 1972. Unlike the CBS and NBC requests, these apparently
contemplate "runover" from afternoon into prime time, or more than 3
hours during prime time, as a matter of regular course. The first 5
involve Saturdays this fall, when ABC carries NCAA football. One
(November 20) is for waiver to carry two late afternoon and evening games which
will occupy all or nearly all of the four prime time hours in the Eastern and
Central zones. Another (November 27) involves an afternoon NCAA double header,
lasting from about 1 PM to 7:30 PM E.T., with a following program on college
football generally until 8 PM; waiver is requested in the Eastern and Central
zones so that later regular evening programming may also be carried. The
request for November 6 involves a football game (beginning at 9:30 PM E.T.)
plus a 1 1/2 hour movie; waiver is not required in the East but is in the
Central and other zones. A request for October 9 contemplates
football [*60] until 6 PM E.T. and then the regular Saturday
"Wide World of Sports" program until 7:30, requiring waiver in the
Eastern and Central zones if regular evening programming is to be carried
thereafter. The October 16 NCAA game coverage is expected to run until
7:30 E.T., and waiver is requested in the Eastern and Central zones so that
regular evening programs may follow. The other 7 events listed include
two holiday-season Bowl games (East-West and Hula Bowl), two golf tournaments
each with coverage on both Saturday and Sunday, and an NBA basketball game.
Coverage of the events will run until 8 PM E.T. in two cases and 7:30 PM E.T.
in five, and waiver in the Eastern and Central zones is therefore requested so
that regular evening programming may also be presented.
5. These requests present a
much greater problem in terms of the rule and its objectives than do the NBC
and CBS matters dealt with above, because in general they contemplate
incursions into prime time by sports coverage as a matter of plan and regular
course, rather than more or less fortuitously, such coverage to be presented
along with the usual amount of evening network programming, usually
entertainment. Thus, of the 12 events, 10 involve sports running till
7:30 or 8 PM (E.T.) apparently to be followed by the customary three hours of
network prime-time material.
6. These requests present a
much greater problem in terms of the rule and its objectives than do the NBC
and CBS matters dealt with above, and in our view they must be denied (except
that we are granting waiver for the two occurring in the immediate future,
during October, in order to avoid last minute disruptions). In general,
they contemplate use of prime time for sports coverage as a matter of plan and
regular course, on a substantial number of days, n3 to be presented along with the usual amount of network prime time
programming, usually entertainment. Thus, ten of the requests are to use
30 minutes or an hour of the early part of prime Saturday or Sunday hours for
sports coverage, followed apparently by the usual three hours of regular
programs. Another, for November 6, involves (in all time zones except
Eastern) 2 1/2 hours of football plus 1 1/2 hours of network movie
entertainment. Clearly, these proposals go far beyond the matters
referred to in "footnote 35" n4
and grant of the requests would be inconsistent with the spirit and purpose of
the rule.
n3 It is roughly four months, or
about 120 days, between now and February 6, 1972, the date of the last
request. 12 dates within this period means roughly one waiver every 10
days.
n4 This is even more true because
some of the prime-time sports coverage proposed is not "live
coverage" at all, but a post-game general review of college football
(November 27), or (October 9) the "Wide World of Sports", which has
no particular relation to the preceding football game except that both deal
with sports.
7. We point out that there is
not generally involved here the question of whether the network may present,
and its affiliates may carry, these popular sports events in prime time.
Of course, they may, and to their completion. What is involved is whether
these events should be exempted from the permissible three hours of network
prime-time programming on these nights, so as to permit the networks to present
and their affiliates to carry the full network prime time lineup in addition to
the sports material. To permit this would be to abandon to a very
substantial extent the spirit and objectives, as well as the letter, of the
rule, and we cannot agree that this should take place. To put it
otherwise, [*61] what we are saying is that if the networks are
going to present sports during prime hours, they should plan to do it by
preempting their regular programs, or "on their own time", rather
than through incursion into the hours which have been made available to
non-network sources under the rule.
8. The foregoing observations
apply less to one of the ABC requests, for November 20, when it asks waiver to
present an NCAA football "double header", the last portion of the
afternoon game and all or most of the evening game occurring during prime
hours, with no regular network programs to be carried. Thus, in this one
instance, it appears that all of the prime hours (in the Eastern and Central
zones) will be used for live sports coverage, or at least live coverage plus
related material concerning college football that day. It could be argued
that this is comparable to the New Year's Bowl game waiver previously granted
to NBC. However, while this is different from the other requests, we are
not persuaded that a regular-season football "double header", on one
of several Saturdays during the season, falls into the same category as the
historically well-established New Year's Day situation. Grant of waiver
in this not unusual case -- to permit four hours of sports coverage in prime
time -- is to likely to serve as an undesirable precedent for expanding the
three permissible three hours to four on a large number of occasions, for
various reasons. n5 Therefore this request is denied
along with most of the others. n6
n5 There are, of course, many
Saturday afternoon college games and some Saturday evening college games on
numerous dates each fall. To the extent that ABC wishes to present one
afternoon and one evening game, it should be able to find combinations (e.g., a
Saturday afternoon game starting early) which do not involve this prime-time
problem.
n6 ABC's argument, concerning the
fact that waiver is sought only for certain time zones rather than the entire
country, is discussed below in connection with two NBC reuquests involving the
same type of situation.
9. Therefore, as far as their
merits are concerned, we conclude that all of the ABC requests concerning
specific events this fall and coming winter must be denied. However, it is
also noted that two of these events are scheduled for the immediate future,
during October (October 9 and 16). ABC's counsel in a letter of October
5, 1971, pointed out the disruption which would result if the request in the
October 9 case (involving "Wide World of Sports") were denied at this
late date. Accordingly, the two waiver requests for October dates are
granted. n7
n7 In granting two of ABC's specific
waiver requests, we have acted in its case comparably with the two sports
waivers previously granted NBC, which ABC urges as one reason for favorable
treatment.
10. NBC and ABC requests
concerning the 1972 Olympic Games. Both NBC and ABC request a blanket
waiver, to permit affiliates to carry up to 4 hours a night of their programs
during the periods of the 1972 Olympic Games. NBC's request is in
connection with the winter Olympics from Japan in the first half of February
1972; that of ABC is in connection with the summer Olympics from Germany during
the period August 25-September 10, 1972. NBC's request is quite general,
stating that it is not possible now to predict when the coverage will take
place, or what will be carried, the latter depending on what will be of most
interest to the public. It is stated that some of the events are expected
to be presented "live", via satellite. ABC is somewhat more
specific, presently contemplating 7:30 to 11 each [*62] night,
Monday to Friday, in two weeks at the end of August and beginning of September,
plus weekend coverage which cannot now be predicted, for a total of 47 hours of
prime-time and 19 1/2 hours of nonprime-time coverage.
11. The presentation of
substantial Olympic coverage appears to be desirable and in the public
interest. However, we are of the view that these rather general requests
must be denied. Certainly this is true of NBC; it appears possible that
that network may be contemplating only the type of practice discussed above in
connection with ABC's individual requests, presenting some Olympic coverage in
prime time in addition to its regular network lineup. If so, the
statement set forth above is applicable. It appears that ABC contemplates
on weekdays preemption of regular network prime-time programming plus an additional
half-hour. Since these events occur only every four years, this could
perhaps be considered. However, here also we must bear in mind the
undesirability of permitting large-scale network incursion into prime time
reserved for non-network sources, even when it is accompanied by preemption of
their regular prime-time programs. In the absence of more specific
information, including some idea of weekend programming plans, we must deny the
ABC request also. n8 In both cases, the networks may
wish to renew their request, with more specific information.
n8 Unlike NBC, ABC does not state
that any of the programming will be "live", and, in view of the time
differential between Munich and the U.S., it is doubtful that it would ever be
presented simultaneously with its occurrence.
12. NBC requests concerning
the Academy Awards and Miss America programs. NBC presents the annual
Academy Awards program in April, and the finals of the Miss America contest in
September, from 10 PM to midnight E.T., simultaneously in all of the U.S. (in
contrast to most of its programming, which is delayed in the Mountain and
Pacific zones). It wants to continue to present two hours of regular
prime-time programming in addition on these nights. This presents no problem
under the Rule in the Eastern and Central zones, where only one hour of the
special program falls within prime time; but it does in the zones to the west,
where all of the "special" falls within prime time and the regular
programming, added to it, would exceed the 3-hour limit.
13. Despite the fact that
these are irregular and in a sense "special" programs, and that the
waiver would be needed only in two zones of the country in which the markets
among them contain less than 20% of the prime-time homes in the total of the
"top 50 markets" of the nation, we are of the view that waiver should
be denied. n9 We have already mentioned the high
importance which is and must be attached to preserving a substantial amount of
desirable prime hours for non-network sources, free from network impingements;
and that therefore, in our view, such preempting programs must be presented by
the networks, generally and here, "on their own time" as far as prime
hours [*63] are concerned. This is true, it appears to us, no
matter where the "prime hours" involved are located. Thus, in
those areas where more than one hour of the NBC special programs will be
included in prime hours, we believe the network and its affiliates should be
expected to present correspondingly less of regular material.
n9 ABC made a similar argument in
connection with its requests for individual sports events: that none require
waiver in all time zones. The point is of considerably less significance
in its situations than it is here, since 11 of the 12 events involve waiver in
both Eastern and Central zones, the large markets in them having a total of
more than 80% of the nation's "Top 50 market" prime time
households. In the other case, waiver is needed in all zones except
Eastern, which means more than 40% of the "top 50 market" prime time
households.
14. Request of ABC concerning
two Michigan markets. ABC also makes one special request concerning its
affiliates in Detroit and Grand Rapids, Michigan, arising from the fact that
Michigan, in the Eastern Time zone, does not observe advanced or daylight
saving time. An important feature of ABC's current programming is NFL
football games on Monday evenings, starting at 9 PM Eastern time. During
the month of October, October 11, 18 and 25, these will begin on the Michigan
stations at 8 PM Michigan time. Even so, no problem would be presented
except that, like most ABC affiliates, these stations have chosen to cut back
on Monday nights to 2 1/2 hours of prime-time ABC programs in order to
compensate for ABC's schedule of 3 1/2 hours on these days. Waiver for
these affiliates to carry the Monday-night games is requested. It appears
appropriate, and is granted.
15. In view of the foregoing,
IT IS ORDERED, That:
(a) Stations affiliated or under
common ownership with the Columbia Broadcasting System, Inc. (CBS) or National
Broadcasting Company, Inc. (NBC) television networks MAY PRESENT, through
January 23, 1972, without counting any of the time against the prime-time
network programming permissible under Section 73.658(k) of the Rules, all of
any World Series baseball game or professional football game beginning no later
than about 4 PM (E.T.), or any two such games when the first begins no later
than about 1 PM (E.T.), or any basketball game beginning no later than about 5
PM (E.T.); or coverage of the Bob Hope Golf Classic on Saturday and Sunday,
February 12 and 13, 1972.
(b) Stations affiliated or under
common ownership with the NBC network MAY PRESENT, on any night during October
1971 during which that network presents a World Series baseball game at night,
up to 4 hours of network programming without being required to cut back network
programming on another night.
(c) Stations owned by or under common
ownership with the American Broadcasting Companies, Inc. (ABC) television
network MAY PRESENT up to three and one-half hours of network programming
during prime time on October 9 and October 16, 1972, without any requirement
that they reduce their network programming on other nights.
(d) Stations affiliated or under
common ownership with the ABC network in Detroit and Grand Rapids, Michigan,
MAY PRESENT ABC football games on Monday nights during the month of October
1971, in their entirety, without counting more than 2 hours toward the time
permissible under Section 73.658(k) of the Commission's Rules.
16. IT IS FURTHER ORDERED,
That, the requests for waiver of Section 73.658(k) filed by American
Broadcasting Companies, Inc. [*64] (ABC), on July 2, 1971, Columbia
Broadcasting System, Inc. (CBS) on July 9, 1971 and National Broadcasting
Company, Inc. (NBC) on August 31, 1971 ARE GRANTED to the extent indicated
herein and in all other respects ARE DENIED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY:
BARTLEY; WELLS (IN PART)
CONCUR:
CONCURRING
STATEMENT OF COMMISSIONER ROBERT T. BARTLEY IN WHICH COMMISSIONER JOHNSON JOINS
At the outset, it should be made
clear what is, and is not, involved in these requests for waivers.
The rule, of which waivers are
sought, generally limits television stations in certain top 50 markets to three
hours of network programming per night during "prime time" of 7 to 11
P.M. (6 to 10 P.M. Central Time) so that there may be greater diversity of program
sources.
The waivers here requested for
sports events fall basically into two categories:
(a) Those events which would
normally end before the beginning of prime time but, because of unexpected
delays, extend into prime time.
(b) Those events actually scheduled,
in whole or in major part, during prime time.
There are no questions involved here
of whether the station may broadcast the games in prime time or whether, if a
game runs over into prime time, a station must cut the broadcast before the
game is over. Those are not the questions. A station may broadcast
the games in prime time, and it does not have to cut a broadcast before the
game is over.
Any indication to the contrary must
be considered misleading.
The only question here involved is
whether the station which carries the network sports telecasts in whole or in
part during prime time must count them as part of the three hours of network
programming. For example, if the network telecast of a game consumes an
hour of prime time, is the hour to be counted as part of the three hours?
Pursuant to the provisions of the
"prime time access" Rule, it does count as part of the three hours.
Waivers of the Rule are sought here
so that it is not so counted.
In my opinion, waiver for a network
telecast of a sports event should be granted only when, due to unexpected
delays in the event itself, the telecast runs over into prime time, or, if
scheduled in prime time, runs over the three hours permitted the networks in
prime time. The amount of time which the telecast thus runs over would
not be counted against the three hours. The waivers which we herein grant
are granted on that basis and, accordingly, I concur.
NBC requests waivers for telecasts
of the Academy Awards program and the Miss America finals so it can present,
additionally, two hours of regular prime-time programming (commercial) on those
nights in the Mountain and Pacific Zones, thus giving it 4 hours instead of 3
in those zones. These are not unique situations. Rather,
[*65] they are typical examples of long-standing network practice as to
preempting programs. Once having made the judgment to pre-empt other
programs, the network should not be permitted to have its cake and eat it too
at the expense of derogating the public interest purposes of the rule.
Accordingly, I concur in denying NBC's waiver requests for these programs.
DISSENTBY:
WELLS (IN PART)
DISSENT:
STATEMENT OF COMMISSIONER ROBERT
WELLS, CONCURRING IN PART AND DISSENTING IN PART
I concur in these actions insofar as
they would grant waivers to CBS and NBC affiliates in connection with afternoon
sports programs which probably will not, but conceivably could, run into prime
hours. I also concur with granting the two waivers to ABC affiliates concerning
sports events in the next two weeks, but dissent to the refusal to grant
waivers in the other 10 specific cases mentioned by ABC.