In the matter of AMENDMENT TO PART 73 OF THE COMMISSION'S RULES AND REGULATIONS
RELATING TO STATION IDENTIFICATION REQUIREMENTS
Docket No. 17145
FEDERAL COMMUNICATIONS COMMISSION
10 F.C.C.2d 399 (1967); 11 Rad. Reg. 2d (P & F) 1607
RELEASE-NUMBER: FCC 67-1131
October 11, 1967 Adopted
BY THE COMMISSION: COMMISSIONER BARTLEY ABSENT; COMMISSIONER LOEVINGER DISSENTING AND ISSUING A STATEMENT IN WHICH CHAIRMAN HYDE JOINS; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT; COMMISSIONER WADSWORTH CONCURRING IN THE RESULT.
[*399] 1. On January 25, 1967, the Commission adopted a notice of proposed rulemaking (FCC 67-114) n1 to prohibit broadcast licensees in station identification announcements, promotional announcements, or any other broadcast matter from leading or attempting to lead members of the listening or viewing public to believe that their stations have been assigned to cities other than those specified in their licenses.
n1 The notice was published in the Federal Register of Feb. 3, 1967 (32 F.R. 2384). Requests were received for extension of time for filing comments and reply comments, and these deadlines eventually were extended to Apr. 28 and May 17, 1967, respectively (32 F.R. 6408).
2. Efforts of certain licensees to mislead the public as to the licensed location of their stations have long been a matter of concern to the Commission. Gulf Television Co., 12 R.R. 447; Tulsa Broadcasting Co., 12 R.R. 1256. More recently, 8 R.R. 2d 1187, we found such practices by a licensee undesirable but, under the particular circumstances of that case, not in violation of existing rules because the call letters and city in which the station was licensed were announced at the time specified for station identification. In the light of information coming to our attention regarding misleading announcements as to station location by this and other stations, we thought it necessary to amend the rules. We further believed that nothing short of a general prohibition of the broadcast of misleading matter on this subject would cover all situations and prevent the defeat of the intent and purpose of our station identification rules. Accordingly, we adopted a notice of a proposal to amend part 73 of the rules to provide that A licensee shall not in station identification announcements, promotional announcements, or any other broadcast matter either lead or attempt to lead the station's listeners to believe that the station has been assigned to a city other than that specified in its license. n2
n2 The amendment to the rules relating to television stations substitutes the word "audience" for "listeners."
[*400] 3. More than one-half of the parties submitting comments support the proposed rule or its purpose, and one (Old Pueblo Broadcasting Co.) urges the Commission to go further and specify that even in non-broadcast forms of advertising and promotion stations may not identify themselves with communities other than those in which they are licensed. n3 However, most of the parties favoring the rule ask clarification (a) to specify that stations licensed to more than one city or authorized to use multiple-city identification may in all program matter identify themselves accordingly, and (b) to specify that stations licensed to one city but providing substantial service to other cities or nearby areas may so describe the scope of their coverage, provided no attempt is made to mislead the audience as to their licensed location. One of the parties in this group asks the Commission to state that licensees shall be entitled to declaratory rulings under section 1.2 of the rules. Several suggest that the Commission issue a public notice containing illustrations of specific ways in which it intends to apply the rule. It was not our intent in proposing this rulemaking to infringe on any authorization for multiple-city identification or to inhibit the broadcast of truthful statements about a station's coverage area. These and other suggestions and requests of parties submitting comments will be dealt with more fully hereinafter.
n3 Comments were timely filed by 30 parties, some of which were multiple owners of broadcast stations, and one of which was the National Association of Educational Broadcasters. The other 29 were Scharfeld, Bechhoefer & Baron; Matta Broadcasting Co.; Truth Publishing Co.; WFGM, Inc.; the American University; Broadcaster Services, Inc.; New Hampshire-Vermont Broadcasting Corp.; Old Pueblo Broadcasting Co.; KPOJ, Inc.; WPVL, Inc.; Independent Music Broadcasters, Inc.; King Broadcasting Co.; Metromedia, Inc.; Storer Broadcasting Co.; Spartan Radiocasting Co.; the law offices of Marcus Cohn; Charles River Broadcasting Co.; Bell Broadcasting Co.; Northwest Publications, Inc.; Triangle Broadcasting Co., Inc.; Appalachian Broadcasting Corp.; Midwest Radio-Television, Inc.; Fly, Shuebruk, Blume & Gaguine (on behalf of seven licensees); Capital Cities Broadcasting Corp.; Newport Broadcasting Co.; Nassau Broadcasting Co.; Knorr Broadcasting Corp.; the Chamber of Commerce of Pine Bluff, Ark.; and Sparks Broadcasting Co.
4. Slightly less than one-half of the comments oppose the rule. Many of these comments are based on misconceptions of its effect in the areas described above; i.e., the use, where authorized, of multiplecity identification and the right to broadcast accurate statements regarding a station's coverage area. However, several submitting opposition comments profess fear that the rule would impose many other prohibitions upon the programming of stations whose licensed location are suburban communities. Among the consequences conjured up by this group are prohibitions against (a) the broadcast of any public-service announcements or programs on behalf of organizations located in the principal city; (b) the broadcast of programs designed to serve the needs and interests of the entire coverage area of the station; (c) the broadcast of advertising sponsored by businesses located in the principal city. A few of those submitting comments even profess fear that a suburban station would be required to delete or severely restrict the amount of news broadcast about events occurring in the adjacent principal city, lest the Commission hold that the broadcast of such news would mislead the station's listeners as to its location.
5. All such fears in the terms stated above are groundless. We have repeatedly stated that a station has an obligation to serve its entire coverage area, and the broadcast of public-service announcements and [*401] other programming, including news, which pertains to or is of interest to persons in its entire coverage area is not inhibited by the proposed rule. However, as set forth in section 73.30(a) of our rules, the primary responsibility of a licensee is to "serve a particular city, town, political subdivision, or community which [is] specified in its station license." The further obligation to serve its entire service area may not be used as justification to ignore the licensee's primary responsibility or to mislead a station's audience as to its licensed location. n4
n4 The opposition comments in this proceeding repeatedly cite Petersburg Television Corporation, 10 R.R. 567, but we said nothing in that decision to justify lack of service to one's assigned community. In commenting favorably on the proposal of one applicant to serve its entire coverage area, we stated that the "proposed station, while serving the entire area, is a Petersburg station," and that "This is not a case where one party, in attempting to serve his entire coverage area, has made inadequate provision for some important segment such as the community to which the station is assigned."
6. In his statement concurring with the notice of proposed rule-making in this proceeding, Commissioner Johnson raised numerous questions going to our basic allocation policies, and invited comments thereon. In response, some filing comments urge that we abandon the principle of licensing stations to individual communities and permit them to identify themselves with entire metropolitan areas. In support of this view, it is urged that the concept of community service is anachronistic; that stations in metropolitan regions now actually serve homogeneous areas rather than political entities; and that the people in such metropolitan areas have the same interest. Although such arguments merit consideration, we do not propose in this proceeding to consider the revision of our historic concept of station allocation, but rather to determine whether a rule should be adopted to prohibit misleading announcements regarding station location as presently assigned. As Commissioner Johnson recognizes in his concurring statement, we have in some areas permitted a substantial increase of interference in order to grant applications for first local transmission services. If we were now to relieve such licensees of their local service obligations we might well reconsider the need for so many facilities in some metropolitan areas.
7. Until such time as we may consider revising our basic policy in allocating facilities, we shall continue to license stations primarily to serve their own communities and secondarily to serve their entire coverage areas. Although the contention has been made that all metropolitan areas are now homogeneous and have the same programming needs, we have been presented no evidence to support such a proposition. Indeed, the tremendous growth of suburban newspapers in recent years would lead to the conclusion that, although many suburbanites work in the principal city, they retain their interest in the political, civic, cultural, social, and educational affairs of their home communities.
8. In releasing our notice of proposed rulemaking, we recognized that if such a rule were finally adopted it would be desirable to issue a supplementary list of examples of its application for the guidance of licensees. We did not release a list of examples at that time because we believed that comments of interested parties in the proceeding would be of assistance to us in preparing the examples. This has proved true. We have considered all suggestions and questions of interpretation submitted in the comments, and are incorporating by reference in the rule [*402] examples of ways in which we intend to apply the rule to specific practices. We previously followed this practice with respect to rules on sponsorship identification and fraudulent billing practices, and it apparently has proved helpful. The list of examples will be enlarged as experience dictates. We believe the examples already set forth will materially assist licensees in achieving compliance, will serve to negate the criticism advanced in some comments to the effect that the rule is vague and lacks clearly defined standards. n5
n5 The National Association of Educational Broadcasters, for some of the same reasons advanced by commercial broadcasters and set forth in pars. 3 and 4 above, asked that the Commission state that the amendments to the rules do not apply to the operations of noncommercial educational stations. However, as we have explained, the rules would not prevent a station from truthfully describing its service area, and, therefore, we believe it would impose no hardship on noncommercial stations.
9. Consideration of the comments submitted in this proceeding has confirmed the belief expressed in the notice of proposed rulemaking that "the proposed amendments would bring about an end to efforts to confuse or mislead the audience as to the city to which a station is licensed, and that they are appropriate and necessary means to carry out our functions under the public interest standard of the Communications Act."
10. Authority for the amendments herein adopted is contained in sections 4(i) and 303(r) of the Communications Act of 1934, as amended.
11. Accordingly, It is ordered, That the amendments Are adopted, effective December 4, 1967.
12. It is further ordered, That this proceeding is Terminated.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
The Commission is here adopting a rule which prohibits broadcast station licensee from making station identification announcements, promotional announcements, or any other broadcast matter [that] either lead or attempt to lead the station's listeners to believe that the station has been assigned to a city other than that specified in its license.
At the same time, the Commission is issuing interpretative rulings, attempting to offer concrete guidelines as to permitted and proscribed practices.
There are a number of factors which together generate the problem the Commission is here addressing.
1. It has long been Commission policy to assign broadcast stations to specific communities. In fact, the objective sought in accomplishing the legislative directive in section 307(b) "to provide a fair, efficient, and equitable distribution of radio service * * *" include trying to assure to every community at least one AM, FM, and TV station.
2. Although stations are assigned to specific communities, and must mention those communities in their "station identification" announcements, the electromagnetic signals sent out by these stations do not stay within city limits.
3. Stations are sometimes authorized by the Commission to serve areas many times the size of the community to which the station and license are assigned. The extent of area coverage is a function of the power, antenna height, conductivity conditions, and other factors.
4. Stations which provide coverage to more areas than their "primary community" find it in their economic interest to identify with as large a population and area as possible, which may be a city other than the one to which they are assigned. This is especially true for stations located near large cities. Their "primary community" may be less than 50,000 people and the large city over 1 million.
Thus, in the Commission's station allocation scheme, licenses are assigned to specific and identifiable communities, but these stations' signals often cover large areas that are not part of that community. At the same time the Commission's regulations declare that stations "will be licensed to serve primarily a particular city, town, political subdivision, or community. * * *" 47 C.F.R., section 73.30. The Commission has also placed great emphasis on the responsibility of its licensees to serve the "needs, tastes, and interests" of the community it serves.
[*404] The proposed rule that the Commission adopts today grew out of a proceeding and decision involving the circumstances I have just described. KABL is an AM station assigned to Oakland, Calif. It also puts a substantial signal over San Francisco. It sought to serve, and identify with, San Francisco in the minds of its listeners and advertisers in many ways. One was to add to its station identification announcement (mentioning Oakland) the phrase, "in the air everywhere over San Francisco." As a result of a hearing the Commission concluded that, while the station "was attempting to create the impression that KABL is a San Francisco station rather than an Oakland station," there was no violation of Commission rules, since "by announcing the station's call letters and the city in which it is licensed, KABL complied with the literal provisions of the [station identification] rule and nothing more is required." McClendon Pac. Corp., 5 F.C.C. 2d 855, 857 (1966).
While I concur in the adoption of this rule, since it will serve to make more effective the allocation scheme that the Commission has adopted, I am, nevertheless, concerned as to whether it will have any discernible effect.
The rule provides that a station cannot "lead or attempt to lead the station's listeners to believe that the station has been assigned to a city other than that specified in its license." What does this mean? Consider the following examples from our interpretive rulings.
A suburban station can announce, along with its station identification, that it is (1) "serving the Green River Valley"; (2) "serving Millville, Rushville, and Oakville" (other cities within its coverage area that are not principal cities); (3) "serving the Tri-City area"; and (4) it can carry public-service announcements for organizations in the principal city.
Such a station cannot, however, announce that it is (1) "covering the greater Principal City area"; (2) "herein Principal City"; (3) "in the air everywhere over Principal City"; (4) "a symphony of sound designed for Principal City"; (5) "with enchanting music for Principal City, the world's most enchanting city"; (6) "the tiger of Principal City radio"; (7) "Principal City's best music station"; (8) "the good guys of Principal City radio"; or (9) broadcast "vignettes referring to places or historical events associated with Principal City" if it is "evident that they are designed to create the impression that [the station] is assigned to or located in Principal City." (This, it seems to me, says little more than that "if it is evident [to the FCC's staff, presumably] that the announcement violates the rule, it will be found to violate the rule" -- a standard of little assistance to a rule-abiding broadcaster.)
It is not altogether clear that these illustrations, taken together, provide as much interpretation of the rule as one might hope for. I believe they fully illustrate, however, that our rule does not go to the heart of the problem it purports to address.
I must admit to considerable disappointment at the Commission's refusal to consider the more important policy implications of the problems it is here trying to solve, and its cursory dismissal of the thoughtful comments that were filed in this proceeding.
[*405] The Commission notes that, * * * comments urge that we abandon the principle of licensing stations to individual communities and permit them to identify themselves with entire metropolitan areas. In support of this view, it is urged that the concept of community service is anachronistic; that stations in metropolitan regions now serve homogeneous areas rather than political entities; and that the people in such metropolitan areas have the same interests. Although such arguments merit consideration, we do not propose in this proceeding to consider the revision of our historic concept of station allocation, but rather to determine whether a rule should be adopted to prohibit misleading announcements regarding station location as presently assigned. * * * If we were now to relieve such licensees of their local service obligations we might well reconsider the need for so many facilities in some metropolitan areas.
Until such time as we may consider revising our basic policy in allocating facilities, we shall continue to license stations primarily to serve their own communities and secondarily to serve their entire coverage area.
Thus, while the Commission itself recognizes the paradox between local service conceived in terms of the assigned community and local service in terms of the area covered it refuses to address these issues. What do we mean by "local service" on the part of a suburban station? Why is it important that such a station identify itself with the suburban community to which it is licensed? Are "local service" responsibilities the same for all licensees, whether in a large metropolitan area or a rural community? I have recently tried to address some of these questions in a speech to the Texas Association of Broadcasters. "Broadcasting's Local Service: A Response to Technological Challenge," FCC No. 6180, September 25, 1967. And see my earlier expression of views in this rulemaking proceeding, 6 F.C.C. 2d 805, 807 (1967) (concurring opinion), and comments about our procedures for reviewing station's local service performance at license renewal time, 7 F.C.C. 2d 687, 695.
Some of these implications and policy considerations were very thoughtfully and creatively discussed in comments on the proposed rule filed by the law offices of Marcus Cohn as amicus. (Cohn argued the case for KABL in the decision that was a moving force for this rule.) His comments correctly point out the difference between local service and station identification, as well as the distinctions between service in a fairly remote rural community and that required of a station assigned to a suburb, but serving in a market with perhaps 30 other radio stations. The comments also point out the competitive disadvantage that such stations would find if they were restricted to serving only their assigned communities. In effect these suburban stations add to the service available (and the competition) in the very large markets where having a station is very valuable.
Perhaps the best illustration of the present unsatisfactory results of the Commission's "historic allocation policy" is that of an AM-FM combination station in a large metropolitan area. The FM is assigned to the principal city and the AM is assigned to a nearby suburb. Both stations carry exactly the same programming and physically cover roughly the same area. Thus, the "local programming" of the two stations is completely irrelevant to where the station is, in fact, technically assigned. Many instances of such "local service" existed prior to the Commission's AM-FM 50 percent duplication ruling. And [*406] many situations exist today where, although the hour-to-hour programming of the AM in the suburb and its FM in the city are different, the programming is actually interchangeable -- the community assignment having no discernible effect on programming decisions.
In broadcasting's early days most stations' service areas were their assigned communities and their outlying rural areas. Their studios and transmitters were located there. Their programming was, necessarily, directed to their local communities. The owners personally knew many of their listeners. They were, often, the only (or one of the very few) stations serving their communities -- thus dictating a balanced program service.
Today, the stations principally involved in this rulemaking are assigned to suburban communities located in large metropolitan areas. Their signals often reach all but a small portion of their metropolitan area. The locations of their studios and transmitters are almost irrelevant, and are generally unknown to most local residents. Their programming formats are designed to capture the largest possible splinter share of the total metropolitan market: All news, classical music, rock-and-roll, country-and-western, popular standards, sports, talk shows, or some combination.
I am not now criticizing the programming judgments of these licensees, nor saying that we should have fewer stations serving large communities. But I do not think we should play games with "local service," insisting our decisions turn on the suburb to which a station is licensed. Especially in large metropolitan areas can local service perhaps best be thought of in the context of the entire area, and programming decisions best be made in the context of the total service available to the entire area. It seems to me the Commission ought to recognize that different allocation, licensing, and renewal policies and procedures may be appropriate for metropolitan areas and rural areas. Concepts of local service and identification of stations with communities for metropolitan areas might be to the largest political or geographic division within the coverage area of a station -- such as the greater Washington area, or the San Francisco Bay area -- rather than perpetuate the charade that a station is somehow assigned to one of the bedroom communities and "primarily" serves that community when, in fact, it is aiming its programming to a specific segment of the population in a large metropolitan area.
Such distinctions are relevant to national station allocation patterns as well as to programming standards. If, in fact, suburban stations are serving the central city they should be credited to it in allocation schemes. There may, in fact, be very little reason for allocating stations to suburban cities at all -- excepting, perhaps, to a truly local suburban group, seeking a station with power limiting its coverage area to the suburb, proposing truly suburban public-service local programming. But until we conduct our analysis in those terms, we might as well make the best of our prior conclusions, and I concur in the promulgation of this rule.
DISSENTING OPINION OF COMMISSIONER LEE LOEVINGER IN WHICH CHAIRMAN ROSEL H. HYDE JOINS (REGARDING BROADCAST STATION IDENTIFICATION RULE)
The Commission is now adopting a rule which provides, in substance, that nothing shall be said over a broadcasting station which might lead a listener to believe that the station has "been assigned to a city other than that specified in its license." This seems to me to be another rule adopted for the sake of regulation rather than because of any real public need or purpose. While there have been a few cases over a period of years in which the Commission has had occasion to criticize the form of station identification announcements, there is no showing whatever either that there is any widespread practice which is objectionable or that anyone has been misled or injured in any way even by the few instances that the Commission has found objectionable.
The rule now adopted is broad and vague in its terms and will undoubtedly give rise to another burden of regulatory activity which will keep the Commission staff busy, will require numerous interpretations and rulings, will provide another bureaucratic requirement for broadcasters to worry about, and will give the Commission another [*403] threat to invoke against broadcast licensees. No public benefit from all this is apparent.
Furthermore, the considerations suggested by Commissioner Johnson's opinion seem to me to argue strongly against adoption of the rule at this time. The very foundation of the single-city identification is questionable in this day of metropolitan area growth and suburban living and commuting. The present trend is toward metropolitan area unification, rather than division. Insofar as this rule has any social effects they will be exerted in the direction of a return to the past, rather than in aiding progress toward the future. The rule is unwarranted by public interest, public need, or public convenience, and is no more than regulation for its own sake. I dissent.