In the
Matter of REQUEST OF AMERICAN BROADCASTING COS., INC. (ABC) FOR WAIVER OF THE
"PRIME TIME ACCESS RULE" (SECTION 73.658(k)) TO PERMIT 3 1/2 HOURS OF
SUMMER OLYMPIC COVERAGE (AUGUST 28-SEPTEMBER 8, 1972)
FEDERAL COMMUNICATIONS COMMISSION
35 F.C.C.2d 320
RELEASE-NUMBER: FCC 72-440
June 5, 1972 Released
Adopted May 17, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONERS
BURCH, CHAIRMAN; REID AND WILEY DISSENTING AND ISSUING STATEMENTS; COMMISSIONER JOHNSON ISSUING A SEPARATE STATEMENT.
OPINION:
1. The Commission here
considers a "Request for Waiver of Prime Time Access Rule" filed on
March 22, 1972, by American Broadcasting Companies, Inc. (ABC), asking for
waiver of that rule (Section 73.658(k)), to permit ABC to present 3 1/2 hours
of Olympic coverage on 10 week nights, Monday-Friday, August 28-September 1,
and September 4-September 8, 1972. Very little of this coverage will be
"live", since Munich, Germany, the site of the 1972 summer Olympics,
is some hours ahead of New York; rather, the material will be filmed and edited
coverage of events there earlier the same day, selected from the large number
of hours of competition in various events which will take place each day (from
69 to 106 hours daily). ABC proposes to televise, in addition, some
events of each of the other 6 days of the Olympic schedule, for a total of 66
1/2 hours of Olympic coverage, including 47 prime hours.
2. Earlier requests by ABC in
this connection, and by NBC in connection with last February's winter Olympier
from Japan, were denied on October 6, 1971, chiefly on the ground that the
requests were too general, seeking simply a blanket waiver of the rule for the
dates involved. n1 NBC did not
again seek waiver, but included fairly extensive coverage of the winter
Olympics within its regular broadcast schedule. ABC has now made its
request more specific, as indicated. In support thereof, it urges: (1)
the international importance of the Olympics, and their recognized contribution
to international harmony; (2) the high degree of public interest in this
coverage, as shown by ABC's widely acclaimed and highly popular coverage of the
1968 Mexico City games, to the extent of 44 hours (described by critics as
"the most complex and extensive television undertaking in history"
and "a virtuoso display of television resourcefulness and artistry");
(3) the fact that its bidding for the right to this material, and arrangements
with advertisers involved, took place well before the decision to adopt the
rule, and the arrangements were based on 3 1/2 hours of prime time coverage
(the contract with the Organizing Committee was publicly announced April 1,
1969); (4) the relative undesirability of an 8-11:30 (E.T.) schedule, which
would be less attractive from the standpoint of exposure to young viewers who
should have an opportunity to watch these important sports events, and disruption
to long-established 11 p.m. news broadcasts on the affiliated stations
involved; (5) the fact that the rule is not yet in full effect anyhow, and will
not be until October 1, 1972, as we have recognized; (6) the additional fact
that at this particular time of the broadcast year, most regular programming is
repeats of series so that the loss of really new regular material would be
minimal; and (7) the uniqueness of this material, constituting a
"transcendent public interest consideration."
n1 See FCC 71-1037, 32 FCC
2d 58.
DISCUSSION AND CONCLUSIONS
3. This request by ABC
presents a fairly close question. In support of it are the various
arguments noted above, including particularly the distinctive character, merit and
popularity of the material (as of similar material in 1968); the fact that the
rule is not yet in full effect, anyhow, until October 1, 1972; and the fact
that at this time in the broadcast year, a great deal of material is repeats of
material run earlier in the season. On the other hand, it is obvious that
this would amount to an expansion of network control of prime time, to the
exclusion of non-network material, well beyond anything we have had occasion to
consider in the past several months, and certainly far beyond anything we have
permitted by granting waiver. It is also obvious that carriage of 3 1/2
hours of this material in prime time on 10 evenings is not essential to the
presentation of it, for a number of reasons. First, no amount of coverage
is going to mean complete presentation of all of the Olympic events, which is
impossible; rather, ABC contemplates an editing and selection process.
Second, since very little of the material, if any, will be "live", a
recorded broadcast will take place in any event, and this is not necessarily
geared to any particular time of day. Third, with three hours being
permissible and planned anyhow, it does not appear that the public will lose a
great deal if waiver is not granted. Fourth, assuming more time is
believed desirable, there appears no basic reason why the material could not be
presented at 11 p.m. E.T. and P.T. (10 p.m. C.T.) or even a half-hour later.
4. On balance, we believe that
the rule must be adhered to in this situation, and ABC's request denied.
While we recognize the limitations on the significance of the impingement which
would occur, because of the time of year involved and the fact that the rule is
not in full effect anyhow, this is simply more of a network incursion into prime
time, and expansion of network control over valuable evening time which the
rule is designed to lessen, than should be contemplated even under those
circumstances. Permitting it would be to thwart the objectives of the
rule, beyond what we believe is appropriate for serious consideration at this
point. We reach this conclusion with respect to the ABC request by
itself; but also, of course, we would have to deal in at least somewhat
equitable fashion with other requests by the other networks should they choose
to advance them, even after the October 1 date. n2 Therefore, we conclude that the
request must be denied.
n2 We cannot attach substantial importance here to
ABC's argument that it made its arrangements, calling for 3 1/2 hours, well
before the prime time access rule was adopted. This is a private, not a
public-interest, argument; and, in any event, restrictions on network
programming during prime time were proposed in 1965 and under consideration
thereafter, and the specific three-hour limitation later adopted was proposed
in 1968. Thus, ABC was, or at least should have been, aware of potential
restrictions.
5. In view of the foregoing,
IT IS ORDERED, That the "Request for Waiver of Prime Time Access
Rule", filed by the American Broadcasting Companies, Inc., on March 22,
1972, IS DENIED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY:
BURCH; REID; WILEY; JOHNSON
DISSENT:
DISSENTING STATEMENT OF CHAIRMAN
BURCH
I opposed the prime-time access rule
from the start. I did so not because of any quarrel with its objective --
to provide non-network programming sources with a few more hours each week to
market their product -- but rather because I felt that it wouldn't work.
At the same time, I have consistently maintained that as long as the rule is on
the books it should be given a fair shake; waiving it to death is no reasonable
test of its efficacy.
In the present case, however, I
believe we are witnessing regulation gone mad -- literal application of the
rule simply for the sake of literal application. During late August, as
ABC has pointed out, prime time hours will be filled with repeats and
"reruns of reruns". There is also the element that ABC intended
to devote all of its prime time broadcasting to Olympic coverage -- unlike
previous cases where the networks sought to pre-empt regular programming for
"specials" and then expand prime time on the same or some other
evening to accommodate the regular programming as well.
Over the past year, the Commission
has repeatedly waived and bent the rule for such "public interest"
offerings as the Academy Awards, Miss America, Cinderella and overruns of live
sports events (in some of which actions I must admit I joined). Yet, in
this instance, the rule must be preserved -- despite the fact that the Olympic
Games are indeed something "special" and the focus, for just a couple
of weeks every four years, of worldwide attention. The Games are
particularly the focus of young people whose parents will doubtless be underwhelmed
by the Commission's reasoning that ABC, after all, can run the additional
half-hour each evening after 11 p.m. or even later.
For no discernible public interest
reason, and surely for no reason having anything to do with the stated purpose
of the prime time access rule itself, the Commission has thus decided to deny
tens of millions of American viewers several hours of Olympic coverage during
the shank of the summer evening -- and the fact that most of this coverage will
necessarily be taped because of time differences strikes me as wholly beside
the point.
What is the point is that, for the
sake of a rule that most of them have never heard of in the first place and
could care less about, these millions will get less Olympic coverage and more
"reruns of reruns". Stated in such bald terms -- bald and
accurate -- I have no doubt where their choice would fall. I also don't
doubt that the Commission's action to deny ABC's waiver request will be greeted
with outrage. And it should be.
DISSENTING STATEMENT OF COMMISSIONERS REID AND WILEY
We join in Chairman Burch's
dissenting statement as it pertains to the particular waiver request in
question.
SEPARATE STATEMENT OF COMMISSIONER
NICHOLAS JOHNSON
I have
consistently maintained that as long as the [Prime Time Access] rule is on the
books it should be given a fair shake; waiving it to death is no reasonable
test of its efficacy.
Dissenting Opinion of Chairman Dean Burch.
I am in wholehearted agreement with
the Chairman. The Prime Time Access Rule "should be given a fair shake;"
we should not "waive it to death."
The Prime Time Access Rule was an
experiment by the FCC with the radical doctrine of free private
enterprise. The prime time television programming available to the
American people is almost exclusively controlled by three firms -- ABC, CBS,
and NBC -- an oligopoly notoriously committed to stagnant and cowering
imitation rather than stimulating and competitive innovation.
The stations which they own (not
counting their affiliates) constitute 2% of the nation's commercial television
stations -- but earn 50% of the industry's gross revenues. The networks
also own the property rights in the programs, the studios, many of the stars,
the affiliation contracts, and the contract with ATT (which distributes the programs).
They sell the rerun rights to their programs, and push them (at artificially
reduced prices) onto the television systems of other nations around the world
(except for those that, fearing the social impact of American TV program fare
repeatedly reported by our Presidential commissions, have limited or banned
American television entirely).
The U.S. Department of Justice,
viewing this anticompetitive restraint on trade, has recently filed antitrust
cases -- U.S. v. Nat'l. Broadcasting Co., C-72-819; U.S. v. Columbia
Broadcasting System, C-72-820; U.S. v. American Broadcasting Co., C-72-821
(C.D. Cal., filed April 14, 1972) -- to bring the industry more closely into
compliance with the standards long-applied to the motion picture
industry. See United States v. Paramount Pictures, Inc., 334 U.S. 131
(1947).
The FCC did not go nearly so
far. It took a very short, small step indeed. ("A giant leap
for the FCC, but a small step for mankind.") All it said was that the
networks could only program three hours (one half hour less than before)
between 7:00 p.m. and 11:00 p.m. ("prime time"). This was
designed to give "access" to prime time for independent producers not
owned by the networks, and thus the short-hand name with which the rule was
christened, "The Prime Time Access Rule." (The networks, ever anxious
to avoid competition, have asked that we -- the FCC and the industry -- agree
on which three hours are involved. In a letter to the networks, the
Commission supported the selection of the 8:00 p.m. to 11:00 p.m. period in
order that the three networks might compete equally under the new Rule. 21 P
& F Radio Reg. 1586 (March 12, 1971).)
No one urged independent producers
or local stations would produce "better" programming under the Rule
-- only that there would be more competition, and presumably more diversity in
the available programming. In spite of enormous hurdles the FCC and
networks have placed in its path, the Rule appears to be slowly working its way
toward its intended goal.
From the beginning, the Rule's
detractors said it wouldn't work. They said program quality would go down
and that there simply wasn't enough capital or expertise to support the
independent programming we sought. They proved wrong on the second point;
but had the power to bring about the first on their own.
At the insistence of the broadcast
industry, and because we adopted the Rule too late to insure new production for
the 1971-72 season, we stayed for one year the provision of the Rule that
prohibited filling the newly cleared one-half hour with off-network syndicated
series programs.
Thus began a run for the
garbage. Nearly every local affiliate, rather than try innovative
programming, used series reruns.
And, of course, the networks
continued to oppose the Rule in the Commission -- citing their crummy
programming as further evidence of the Rule's failure.
Time after time, as the Chairman
points out, the networks have sought waivers for "specials" like Miss
America and movie overruns, usually arguing that failure to grant the waiver
would deprive the viewing public of the benefits of these specials when they --
and we -- knew perfectly well that if we denied the waiver request the specials
could still be shown. Some other network program could easily be limited
or cut to keep the programming within the permissible three hours
nightly. It was their choice.
Finally, as it promised it would,
NBC petitioned the Commission to revoke the Rule.
In the meantime, until the
Commission chooses to revoke the Rule, it is in full force and effect.
And it is within that historical
framework that the Commission's four to three decision to deny the waiver must
be viewed.
The Chairman is correct: in order to
test the Rule, we have to stop "waiving it to death." And finally, in
this decision, we have stopped. The fact that August Prime Time hours
will be filled with "reruns of reruns" will not be affected by
waiving the Rule and is no excuse for doing so. A justification for
reviewing the programming standards of licensees, perhaps, but not for waiving
the Rule.
In effect, our action in this case
can be viewed as a signal to the broadcast industry: we will not retreat from
our Rule. If you want to abuse it and provide low quality programming, so
be it. But that is your choice. We intend to stand by the Prime
Time Access Rule.
Because ABC and the FCC minority are
not above suggesting to American sports fans that an inexplicable, rigid,
bureaucratic FCC is what's keeping the Olympics from their home screens, a few
facts are in order.
(1) ABC never did plan live coverage
of the Olympics.
(2) ABC never did plan total taped
coverage of the Olympics.
(3) ABC planned to edit from
(probably) dozens of hours of Olympic events per day a 3 or 3 1/2 hour excerpt
(including commercials).
(4) Thus, the issue is -- at most --
whether ABC's edited tape will run 3 or 3 1/2 hours per night.
(5) When ABC bought the rights to
the Olympics it was fully aware of the Rule -- first proposed in 1959. It
bought the rights knowing full well that 3 1/2 hours in Prime Time would be
prohibited. One network official told a Commissioner that it bought it
anticipating an FCC waiver! Can you imagine a judge's reaction to a
convicted criminal's statement that he committed the crime "anticipating
leniency"?
(6) In fact, nothing the FCC has
done today prevents ABC from showing 3 1/2 hours of edited Olympics videotape
-- or videotaped complete coverage -- if it chooses. It can run its
videotape from 8:00 p.m. to 11:30 p.m. (EDT; 7:00 to 10:30 CDT) -- or from 8:00
p.m. to 2:00 a.m. if it wishes. It can run it during the day. It
could put on two hours of coverage from 5:00 to 7:00 p.m. -- to cover that
children's audience for which ABC now argues the 7:30 to 8:00 p.m. coverage was
intended -- and three hours from 8:00 to 11:00 p.m., for a total of five hours
a day. If there is enough material, it can broadcast 23 hours of Olympics
daily. In short, its programming options are almost endless -- with the
only exception the 7:00 to 8:00 p.m. time slot.
(7) ABC will, probably, have a very
profitable block buster on its hands under the FCC's ruling today -- in terms
of ratings and advertising revenue.
(8) If ABC could start its program
at 7:30 it could make even more advertising revenue from the 7:30 to 8:00 p.m.
time slot than from the 11:00 to 11:30 p.m. time slot -- an understandable
corporate desire, but scarcely grounds for waiving a Rule promulgated to serve
the public interest.
(9) Having tasted blood, it wants to
drive home its rating victory over CBS and NBC by getting a half-hour lead at
the starting line -- beginning at 7:30 p.m., when its competitors do not begin
until 8:00 p.m. Such behavior would scarcely be tolerated by sports fans in an
Olympics race, and I don't think it should be accepted by them in a ratings
race either.
ABC has said publicly that it will
lobby the Commission to get it to reconsider its decision. Indeed, that
lobbying has already begun. I received a phone call from the president of
ABC, as did the other Commissioners. I expect to receive literally
hundreds of letters, phone calls and telegrams urging reconsideration. If
the Commission changes its mind, however, it will be because of pressure, and
pressure alone.
The public may, as the Chairman has
said, be outraged. But if they are permitted by the mass media to become
informed, it will not be at the Commission's decision. For that decision
is based on a policy markedly in the public interest. If they are
outraged, it will be at a network that values profits more than public service
and law and order.
How much videotape of Olympics
events ABC will show us is wholly up to the network. It promises to be an
interesting program, and I suspect I'll be watching.