In the
Matter of ASCERTAINMENT OF COMMUNITY PROBLEMS BY BROADCAST APPLICANTS
Part 1,
Sections IV-A and IV-B, of Broadcast Application Forms, and Primer Thereon
Docket No. 19715
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 379
RELEASE-NUMBER: FCC 73-330
March 23, 1973 Released
Adopted March 22, 1973
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT;
COMMISSIONER H. REX LEE CONCURRING AND ISSUING A STATEMENT; COMMISSIONER HOOKS
ABSENT.
OPINION:
[*379] 1. The
Commission has under consideration its requirements and policies with respect
to ascertaining and meeting community problems by broadcast applicants. n1
n1 The
word "problems" is used as a short form of the phrase "problems,
needs and interests." (A. 3. Primer on Ascertainment)
2. Our Task Force study
concerning re-regulation of broadcasting, under the supervision of Commissioner
Wiley, indicates that the ascertainment process should be examined for its
overall effectiveness in the public interest.
3. Pursuant to the
Commission's Program Policy Statement of 1960, "The broadcaster is
obligated to make a positive, diligent and continuing effort, in good faith, to
determine the tastes, needs and desires of the public in his community and to
provide programming to meet those needs and interests." (FCC 60-970; 25
F.R. 7291).
4. The Commission's present
standards for the ascertainment process are set forth in a question-and-answer
type "Primer on Ascertainment of Community Problems by Broadcast
Applicants", adopted February 18, 1971 ( Report and Order, Docket No.
18774, 27 F.C.C. 2d 650). The Commission stated that, "... the amended
Primer, in our view, will aid broadcasters in being more responsive to the
problems of their communities, add more certainty to their efforts in meeting
Commission standards, make available to other interested parties standards by
which they can judge applications for stations licensed to their community, and
aid our staff in applying standards uniformly." The Commission indicated,
however, that with respect to renewal applicants the Primer was to serve
"as an interim measure until other standards are adopted." ( Id., at
655.)
[*380] 5. Our
experience indicates that the principle of ascertaining and meeting community
problems is one important requisite for service in the public interest.
We are concerned here, as part of our continuing study on re-regulation of
broadcasting, with whether present ascertainment requirements serve the public
interest in the most effective way possible and, if not, what improvements
could be made to accomplish that objective. Over 600 comments have been
filed in our re-regulation study. Many contend that various specific
requirements of the ascertainment process are unnecessary, impractical, unduly
burdensome and, thus, should be modified or deleted.
6. Comments in our
re-regulation study also assert that radio is a different medium from
television and should be treated differently in the matter of
ascertainment. Accordingly, Part I of the Inquiry is designed to explore
these alleged differences relative to the role of each of the media in
discharging its statutory responsibility for serving the public interest,
convenience, and necessity. An inherent consideration, in this regard, is
any possible conflict with mandates of the Communications Act of 1934, as
amended. Additionally, the comments we have received suggest that certain
variables (e.g., market size, numbers of stations, number of employees,
specialized formats, etc.) also should be considered in determining
ascertainment procedures.
7. While the issues involved
in Part I are very broad and relate to many aspects of our regulatory policy
(some of which may be the subject of subsequent Commission action), the focus
of this Inquiry is particularly related to ascertaining and meeting community
problems. Thus, Part II deals specifically with ascertainment processes
for both radio and television in light of any difference between the two media
and operational variables involved (as elicited in Part I).
8. This Notice of Inquiry
elicits comments (on issues set forth below) applicable to both radio and
television. Due consideration will be given, of course, to any comments
received. However, in all probability, our initial concern will be with
radio, since it is the primary focus of our re-regulation study.
Additionally, radio stations (of which there are approximately ten times as
many as television stations) have wider variances as to size of market,
operating power, hours of operation, type of service (AM, FM) and programming
format to serve the public. These variances and the resultant diverse
nature of radio make its ascertainment considerations of more immediate
concern.
9. Comments are invited on the
following questions:
PART I
(a) What is the role (or function)
of radio in discharging its statutory responsibility for serving the public
interest, convenience and necessity; and is that role affected by size of
market ("small market", n2 Top 50, Top 100, etc.), number of
stations in a market, number of station employees, specialized programming or
other variables?
n2 We specifically invite comments on how
"small market" should be defined both as to radio and television.
(b) What is the role (or function)
of television in discharging its statutory responsibility for serving the
public interest, convenience and necessity; and is that role affected by any
variables such as those indicated in (a) above?
[*381] PART II
(a) Do the roles (or functions) of
radio and television in discharging their responsibility for serving the public
interest, convenience and necessity differ to the extent that requirements for
ascertaining and meeting community problems should be different for each
service? If so, would such different requirements be inconsistent with
any part of the Communications Act of 1934, as amended? Similarly, should
any of the variables set forth in Part I dictate any different requirements
and, if so, would such different requirements be inconsistent with the Act?
(b) In answering the general
questions in (a) of this Part, and in considering the entire subject of
ascertaining and meeting community problems, the following specific questions
should be addressed:
(1) Should an ascertainment of
community problems be made six months before filing an application, as now
required, at some different time, or on a continuing basis? What should
be considered a "continuing" basis? How should it be
accomplished? How should it be documented?
(2) Are consultations with community
leaders and members of the public, in the manner provided by the Primer,
helpful to the station and to the public which the station is licensed to
serve?
(3) Should consultations with
community leaders be conducted by principals and management-level employees
only, or by other employees as well? If so, which ones? By
non-employees?
(4) Should a professional research firm be
permitted to make the ascertainment of community leaders for a station?
For all stations in the community collectively? Would use of a research
firm be consistent with the Commission's traditional view that this is "a
duty personal to the licensee and may not be avoided by delegation of the
responsibility to others". (Commission's Program Policy Statement of
1960, supra.)
(5) Is it advisable to permit:
(i) Group consultations (in which
all licensees in the community meet with community leaders, community groups
and members of the public)? If so, under what circumstances, and
why? n3
n3 It is
the Commission's current policy to permit joint consultation under the
following conditions: Each individual community leader must be given an
opportunity to freely present his opinion of community problems; each
broadcaster present must have an opportunity to question each leader; and the
joint meetings should include community leaders who are the same or equal plane
of interest and responsibility. See June 30, 1971, letter to Southern
California Broadcasters Association (FCC 71-699); and August 4, 1971, letter to
Metro Portland Broadcast Committee (FCC 71-825).
(ii) Ascertainment of community
problems by means of broadcast programming (including announcements) in which
community leaders, members of the public, etc. participate (such as panel and
interview programs)?
(iii) Ascertainment of community
problems by Town Hall types of meetings? Should this procedure be used to
consult with all community leaders? The public? Or both? Would such
meetings be representative of the public the station is licensed to serve?
(6) Should consultation with
community leaders by telephone continue to be permitted? Why?
(7) In the broadcast of matter
designed to meet community needs, should credit be given for spot announcements
as well as for programs? May spot announcements be used exclusively?
(8) Should a station using a
specialized programming format be permitted to ascertain and meet only the
problems of its specialized audience? Is it possible to define accurately
that audience out of the total general public? If so, how?
(9) Should different requirements
for ascertaining and meeting community problems be applied according to
different types of applications, i.e., for new stations, major changes in
facilities, assignments and transfers and renewals? Why?
(10) Should requirements for
ascertaining and meeting community problems be incorporated in the Commission's
rules or left, as now, in policy statements and forms? Why?
[*382] 10.
Comments in both Parts of this proceeding are not limited to the foregoing
questions, but may be addressed to any facet of the processes for ascertaining
and meeting community needs. It is hoped that comments, either formal or
informal, will be submitted by interested parties from all segments of the
public and broadcasting industry.
11. The questions above are
designed to elicit information which would be helpful in this proceeding.
The Commission takes no position on these matters at this time.
12. This action is taken
pursuant to Section 403 of the Communications Act of 1934, as amended.
Interested parties responding to this Notice of Inquiry may file comments on or
before June 1, 1973. Reply comments may be filed on or before June 22,
1973. An original and eleven copies of each formal response must be filed
in accordance with the provisions of Sections 1.49 and 1.51 of the Commission's
rules. However, in an effort to obtain the widest possible response in
this proceeding from licensees and members of the public, informal comments
(without extra copies) will be accepted. Copies of all pleadings filed in
this matter will be available for public inspection during regular business
hours in the Commission's Public Reference Room at its headquarters in
Washington, D.C.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: LEE
CONCUR:
CONCURRING STATEMENT OF COMMISSIONER
H. REX LEE
I concur in the adoption of this
inquiry into the Commission's current ascertainment requirements for commercial
broadcast applicants. As a general proposition, I favor an administrative
agency's review of the effectiveness and impact of its past regulation.
Two years have now passed since the Primer was issued. In that time it
has become evident that some modifications and changes may be needed to help
improve and possibly simplify the ascertainment process for both the licensees
and the public. Hopefully, this inquiry will accomplish these goals.
In the Primer we stressed that
ascertainment standards would be applied to renewal applicants only on an
interim basis until the Commission could review comments filed in Docket Nos.
19153 and 19154, wherein we are examining our renewal processes in the
commercial broadcast field. Action on these dockets is long
overdue. Comments have been filed, and an oral argument held with respect
to the latter docket. The uncertainty which these proposed rules have
created in the broadcast industry and public should have been disposed of one
way or another before we initiated this broad inquiry.
There are several pending petitions
for rulemaking which seek to impose formal ascertainment requirements on
noncommercial educational broadcasters and to modify their renewal
process. These subject areas could have been included in the commercial
ascertainment inquiry. However, this would not have been administratively
wise. It should be noted the Primer was specifically intended to provide
guidelines for commercial broadcast applicants only and the Commission
previously indicated that noncommercial educational broadcasters should be
treated differently, given their unique character and the very specialized
nature of their programming. See Primer on Ascertainment of Community
Problems by Broadcast Applicants, 27 FCC 2d 650, 651 (1971). As a result, it is
more appropriate to address the substance of the pending rulemaking petitions
apart from the ascertainment inquiry concerning commercial broadcast applicants
although the latter could have a substantial impact on the Commission's
consideration of the former.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
The Communications Act makes clear
that broadcasters have an obligation to serve "the public interest."
The Act, and its legislative
history, make clear that "the public interest" includes programming.
The whole premise underlying the
allocation of 95% of the nation's most valuable frequency space to 8,000 radio
and television stations (rather than defense, police, and business uses) is
that these stations are providing local programming designed to serve local
needs.
There are a number of ways the
Commission can insure compliance with the Act. Some involve Commission
action -- such as establishing minimum performance criteria necessary to
renewal. Others substitute the involvement of local citizens for regulation
from Washington. I prefer the second, but can accept either
approach. What I cannot abide are the broadcasters' arguments that they
should be responsible to neither the FCC nor their local communities.
While examining the "role"
of radio and television, and the possibility of modifying (presumably reducing)
the local ascertainment process, the inquiry does not even contemplate the
numerous alternatives to ascertainment should it be curtailed.
Sensible substitution of one public
interest process for another I am prepared to consider. If there are ways
to relieve broadcasters of unproductive burdens we should do so. Whatever
may be the protests to the contrary, however, I fear that this inquiry -- once
concluded -- may well turn out to be but one more example of the erosion of
such [*383] feeble efforts as still remain to provide some public
interest criteria for broadcasting with nothing to substitute in its place.
It will be issued in time for the
cheers it will undoubtedly produce at next week's annual convention of the
National Association of Broadcasters. But that is scarcely justification
for the haste purpose or content of this document.