STATION INSPECTION Forms, Revision of Public Notice
April 25, 1967
Commissioner Cox abstained from voting and Commissioner Johnson dissented with a statement.
STATION INSPECTION FORMS REVISED
The Commission, by Minute Action, has voted to delete certain categories of non-technical questions from standard station inspection forms.
Commissioner Cox abstained from voting and Commissioner Johnson dissented with a statement.
STATEMENT OF COMMISSIONER NICHOLAS JOHNSON REGARDING DELETION OF SEPARATE INSPECTION FORM FOR NON-TECHNICAL REQUIREMENTS
The question before us is relatively simple. Is the FCC adequately enforcing the regulations it has promulgated? I think not. Here's why.
What are the regulations involved?
The Federal Communications Act and the Commission's rules impose numerous requirements and standards with which broadcast stations are supposed to comply. For convenience these requirements and standards are sometimes distinguished as "technical" and "non-technical." Examples of the very large number of technical requirements are those prescribing the allowable deviation from authorized operating power, 47 CFR § § 73.57, .267(b) (1966), requiring that all high voltage equipment be suitably insulated, 47 CFR § 73.40(b)(3) (1966), and requiring the cleaning and painting of antenna towers, 47 CFR § 17.39 (1966).
But it is the non-technical requirements with which we are presently concerned. They are less numerous and possibly less obvious, but certainly no less important. Here are some of the principal ones. Stations must identify themselves by call letter and location at times specified in the rules. 47 CFR § § 73.117, .287, .587, .652 (1966). Direct or indirect sponsors of all matter broadcast must be explicitly identified. 47 CFR § § 73.119, .289, .654 (1966). Broadcast of lotteries or advertisements of lotteries are forbidden. 47 CFR § § 73.122, .292, .656 (1966). Thorough program, operating, and maintenance logs must be kept by each station. 47 CFR § § 73.111-.116, .281-.286, .581-.586, .663-.664 (1966). Stations must keep records of all requests for time by candidates for public office and must treat all such candidates equally in making time available. 47 CFR § § 73.120, .290, .590, .657 (1966). In addition there is the general duty, not elucidated by the rules, "to afford reasonable opportunity for the discussion of conflicting views on issues of public importance" under Section 315(a) - the so-called "fairness doctrine."
This is not the occasion to discuss the wisdom of any of these rules and standards. As I have indicated in other contexts, it is my firm belief that the Commission should promulgate and retain rules only when they serve a useful purpose. See American Television Relay, Inc., 6 FCC 2d 837, 843 [9 RR 2d 800] (1967) (statement concurring in part and dissenting in part - cable television rules); Sierra-Pacific Radio Corp. (KOSO), 7 FCC 2d 61, 62, 9 RR 2d 497, 499 (1967) (dissenting opinion - station "location" on mountains). I wish to emphasize this. I believe the public, the broadcasting industry, and the FCC would be substantially served by periodic revision, elimination, reevaluation, and simplification of the Commission's rules. But that issue is not now before us. The Commission's action today presupposes the desirability of our non-technical rules. The Commission concerns itself only with the rules' enforcement. So, therefore, will I.
How are non-technical regulations now enforced?
In order to enforce both the technical and non-technical regulations the Commission's staff engages in a variety of activities.
(1) When seeking license renewals licensees must submit program logs, programming proposals, and answers to questions regarding compliance with Commission rules. This material is scanned for evidence of failure to comply with technical and non-technical regulations.
(2) The Commission receives and investigates complaints from the public and interested parties. I will discuss this function more fully later.
(3) Finally, the Field Engineering Bureau of the Commission engages in "renewal inspections" of about 54 per cent of the 7,000 broadcasting stations in the United States at some time during the three-year license period of these stations (about 1,200 stations a year). The field inspectors take with them a checklist of items to be inspected at each station. Most items involve technical requirements, but some attention is given to non-technical standards as well. In the course of this renewal inspection the station's technical performance will be monitored by FCC trucks with receiving apparatus. If, in the course of this monitoring, any non-technical violations are uncovered, they may be investigated further and reported to the Complaints and Compliance Division. The Field Engineering Bureau informs me that about 25 man years are devoted to the task of station inspection and monitoring, that a single station inspection takes from two hours to two days, and that approximately eight per cent of the time is devoted to the non-technical items.
If technical or non-technical violations are uncovered, several sanctions are available to the Commission. (1) Minor transgressions can be corrected at the time of inspection. More serious violations may be the subject of (2) an oral or (3) written warning, or (4) a "forfeiture" (as the Commission calls its fines) of up to $ 10,000. (We have recently, for example, assessed forfeitures of as much as $ 5,000 for failure to paint antenna towers.) (5) Short term renewal (for example, a one-year rather than a three-year license), with the insistence that prohibited conduct be eliminated, is sometimes utilized, and, of course, (6) nonrenewal or (7) revocation are available as ultimate sanctions.
How has this procedure been changed by today's action?
What the Commission has just done is to accept the recommendation of its Field Engineering and Broadcast Bureaus that a separate field inspection form which deals with non-technical requirements be eliminated. This form required that the inspector monitor and record the station's broadcasts before inspection, and on the basis of that pre-inspection monitoring, determine whether the station was identifying itself correctly (including whether it was seeking to identify with a city other than where it is licensed), identifying its sponsors correctly, or broadcasting lottery information. He would subsequently use this information to determine if the station was maintaining its logs correctly. The form also required the inspector to determine if a complaint file was maintained (and whether there were any unresolved complaints of substance), if complete records on requests for sale of political time were maintained, if news broadcasts logged as "live" were composed more than half of material from a teletype machine (under an obsolete Commission rule), and some information on the degree of supervision exercised by the licensee. To some extent the items from the eliminated form are covered by another form which the inspector uses when he is at the broadcast station. While there he checks to see that program logs carry the required information, and that a political file is maintained. It is clear, however, that some items will no longer be checked at all, and that there will be no basis whatsoever for comparison between what goes over the air in fact and what is recorded by the station on its forms.
Why are the more thorough investigations to be terminated?
We are told that the non-technical inspections are time-consuming (roughly eight per cent of the total investigating time), and that a higher percentage of licensed stations can have technical inspections as a result of the time saved (roughly 60 per cent over every three-year period rather than 54 per cent). The engineers are principally trained for investigating technical matters, the form is poorly written and to some extent duplicated, the Broadcast Bureau does not find useful the information provided by the investigating engineers, and the investigators are not coming up with much anyway. If this be the case (and I have no basis or reason for questioning these assertions), there is some question why we undertook the procedure in 1961 and continued it so long. There certainly can be little criticism of the staff for identifying the problem and recommending modification of the practice.
Thus, my disagreement with the course today recommended by the staff and adopted by the Commission is not the change in present practice. My concern is that a vitally important Commission responsibility - enforcement of regulations - is now to receive even less attention than before. And the Commission's decision to do so has been made, in my judgment, without fully considering the only context in which it effectively can be evaluated: our total program of enforcement and complaint-investigation procedures; the money and manpower resources available and invested; the alternative uses of these resources; the effectiveness of alternative enforcement programs; the probabilities, costs and consequences of an increase in violations; and the prospective effect upon broadcasters and public alike.
How does the Commission propose to enforce its non-technical regulations?
When the staff was asked this question, the Commission was told - and accepted - that investigations of complaints from the public would be an adequate substitute.
There are, in my judgment, glaring deficiencies in this alternative.
(1) The public is not now aware of its newly-imposed responsibility. We have gone full circle: the people looked to their elected representatives, Congress, to exercise responsibility over communications; Congress established the FCC to deal with the problems and passed to it the rather broad responsibility to act in "the public interest, convenience and necessity"; now the Commission has turned back to the people the responsibility to investigate and report violations of FCC regulations. The public may be fully qualified and willing to perform this function, but it seems to me we have the responsibility to see that the public is fully and effectively informed of this new obligation. We cannot rely upon the off-chance that great numbers of American citizens are actually reading the United States Code, Federal Register, the Code of Federal Regulations, or the FCC's Reports and Public Notices. In any event, some regulations (such as the keeping of program, operating and maintenance logs, and records of requests for time by political candidates) will be difficult or impossible for the public to enforce without assuming the unreasonable burden of making station visits.
(2) Even if we did have reason to believe the public informed, inclined, and able to report to us the violations of our regulations, we are even less equipped to investigate complaints than we are to inspect stations. The Complaints and Compliance Division of the Commission informs me that it receives some 14,000 complaints each year. (Each year the Field Engineering Bureau receives an additional 31,000 complaints involving signal interference to broadcasting stations.) As one might suspect, many of these letters are frivolous or are based on misunderstandings of the Commission's requirements. But of those complaints deemed worthy of investigation, the Division is able to detail field investigators to only about 40 each year, who spend between two days and a month on each complaint investigated. The Complaints and Compliance Division used to have no more than six field investigators to follow up on complaints regarding 7,000 American broadcast stations. As if that were not ludicrous enough, the staff has recently been cut to three because of backlogs elsewhere. As field investigators work in pairs, I presume that means the United States Federal Communications Commission is now sending out a force of two men to cover a beat as vast as the 2,314,000,000 acres that are the United States. What is needed? For a beginning, and as a minimum, the head of that Division informs me he would pursue at least twice the complaints he now does if adequate personnel were available.
What are the alternatives?
(1) The staff discussed, but rejected, the possibility of creating a special inspection force for non-technical regulation compliance. So would I. Given the obvious limitations on FCC personnel, such a course would presently appear to be unwarranted duplication and expense. With a regulatory responsibility that spans a continent, 7,000 stations, and a variety of complex matters the greatest possible use of generalists would seem desirable.
(2) The staff, and Commission, propose greater reliance on complaints from the public. If such a scheme is to be effective it seems to me to require meaningful public awareness of its responsibility, and perhaps a many-fold increase in FCC investigative staff.
(3) If the present forms and investigations are unsatisfactory, we might at least explore the possibility of improving them. It very well might be that a training program of modest proportions would enable the engineers, with ease and dispatch, to better perform the necessary minimal inspections of non-technical regulation compliance in ways that would produce information of use to the Broadcast Bureau. The form apparently is in need of revision. Presumably it is redeemable. This course seems to me to hold the most promise.
(4) We also might pursue the greater use of questionnaires to station managers - or even informal telephone calls - as the most cost-effective way of gathering information with the least inconvenience to those operating the stations.
My point is simply that the question of the acceptable level of compliance with FCC regulations should be addressed, and various enforcement measures evaluated.
What moral lies at the end of this saga?
It seems to me this story illustrates, as well as any, the extent to which the Commissioners and staff of the FCC are struggling to serve our society's most fundamental need - effective, efficient, and satisfying private and mass communications systems - against truly impossible odds. Is it not obvious that we are lacking in the rudimentary information, analysis, staff, funds, public understanding and support necessary to serve the industries we regulate - let alone the long forgotten and never defined "public interest"?
It may be that the Commission's action today was unwise. I think so. My colleagues think not. That is the end of the matter.
But perhaps a more fundamental issue is involved. How, under these conditions, could the Commission possibly undertake a more adequate inquiry into the "right" decision, or begin to put it into effect?
The Commission has many problems - internal as well as those of national policy. And I fully appreciate that the resolution of each is enormously complicated by the agency's severely restricted budget. There is an obvious need for greatly increased expenditures in several areas of Commission activity. And yet, before additional funds can be legitimately requested or wisely used a most thorough definition and reevaluation of the Commission's mission and programs is warranted. In each instance where the Commission takes or contemplates action it is necessary to ask, "What exactly are we doing, and why?" Need it be done at all? How might it be done more effectively and efficiently? What are we not doing that ought to be done in the area? These questions must be asked, and answered, agency-wide. The Budget Bureau calls the process "program planning and budgeting."
It may very well be that some of the regulations involved in this decision ought to be repealed. That would be welcome relief indeed for taxpayer, broadcaster, and staff alike. But if we are to virtually eliminate our present inspection procedures for non-technical regulations I believe the elimination should follow, rather than precede, a thorough analysis of the purpose of the regulations involved and the alternative means by which they might be enforced. Inadequate, haphazard, or erratic enforcement of regulations is fully as intolerable to the broadcaster as to the public.
It is no sin to be ill-equipped to do your job. But it does, I believe, impose a responsibility to make the condition known to your superiors. There is no way the public can know what the FCC staff - and especially the Commissioners - know so well unless we tell them. The public may choose not to listen, or to listen but not act. But for us not to tell them is, it seems to me, derelict. It is also unfair to that vast majority of FCC employees who would sincerely like to provide more effective service to the public and the broadcasters.
To those who might counsel complacent and "respectful" silence to a Commissioner of my views, I would answer that no disrespect is present. I believe our inadequacies more appropriately evoke sentiments of pathos and sympathy than anger, censure, or ridicule - although kindly laughter may provide more relief than tears. And I believe that to recognize them frankly will ultimately serve to improve, rather than weaken, this agency's effectiveness in serving the American broadcasting industry and its very substantial public.