In Re Complaint by FACULTY SENATE OF THE COLLEGE OF ARTS AND SCIENCES OF THE UNIVERSITY OF ALABAMA Concerning programming of Alabama Educational Commission Stations
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 342
RELEASE-NUMBER: FCC 70-671
JUNE 24, 1970
[*342] ALABAMA EDUCATIONAL TELEVISION COMMISSION, 2151 Highland Avenue, Birmingham, Ala.
FACULTY SENATE, University of Alabama, College of Arts and Sciences, University, Ala.
Mrs. JUDY AUSTIN, Post Office Box 3723, University, Ala.
GENTLEMEN AND MRS. AUSTIN: The Commission has received a letter of complaint from the Faculty Senate of the College of Arts and Sciences of the University of Alabama, a petition signed by sixth persons at the University attached to a cover letter from Judity Austin, a former employee of the Alabama Educational Television Commission (hereinafter referred to as AETC) and more than 15 individual letters complaining about the programming policies of Alabama educational television stations since the AETC assumed control of the NET affiliation on July 1, 1969. In addition, the Commission has under consideration eight applications for renewal of license of the noncommercial educational television stations in Alabama filed by the licensee, AETC.
When the Commission receives complaints of the general nature here involved, its usual practice is to refer them to the licensee in order to afford the licensee an opportunity to comment. The Austin and Faculty Senate letters alleged that since the AETC assumed the NET affiliation from one of its programming centers, the University of Alabama, certain Black oriented programs were being systematically deleted from the schedule including such shows as "Soul," "Black Journal," and "On Being Black" and all Vietnam moratorium coverage. The letters were forwarded to the licensee for comment. The licensee made the following comments on the letters: (1) the AETC's six local programming centers are given priority over NET programs; (2) it is the licensee's obligation to control the programming; (3) the NET affiliation contract requires that its programs be carried in full; [*343] (4) the programs named by the complainants contain "... lewd, vulgar, obscene, profane or repulsive material..." which will not be presented by the AETC; (5) the AETC assumed the network affiliation on July 1, 1969 to remedy technical connecting problems and to more equally divide the programming among its six centers; and (6) no moratorium coverage was presented because it was adequately covered by the networks. A short letter of reply from the Faculty Senate stated that it was not accusing the AETC of censorship but preferred the original policy of program selection and scheduling.
The AETC further submitted a comment to another programming complaint. In this letter the licensee listed 257 programs which were carried for a total 217 hours during a 30 week period from September, 1969 to April, 1970 which "... either were integrated or involve a Negro complement entirely." 155 of those hours were the program "Sesame Street," half of which were repeated programs, i.e., morning and afternoon.
The Commission has reviewed the overall operations of the eight Alabama educational stations and the allegations raised by the complainants to determine if the public interest would be served by a grant of the applications. With respect to the issues of program selection and control, the Commission, barring certain exceptions, is not concerned with matters essentially of licensee taste or judgment. cf. Palmetto Broadcasting Co., 33 FCC 250, 257 (1962). The licensee necessarily and properly has wide discretion in choosing the programming to meet the needs and interests of the community. The Commission regards the maintenance of control over programming as a most fundamental obligation of the licensee. Here we are dealing with a few programs which in the licensee's opinion contain certain offensive material.
In view of the foregoing, there is no substantial problem warranting further inquiry, and the Commission has directed that the applications for renewal of license filed by the AETC be granted.
Commissioners Cox, Johnson and H. Rex Lee dissenting and issuing the attached statements.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTBY: COX; JOHNSON; LEE
DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX
I dissent to the grant of the renewal applications for the eight educational television stations licensed to the Alabama Educational Television Commission. We have received serious complaints about the licensee's discharge of its obligations, and I do not think we should act on the applications without further inquiry.
Prior to July 1, 1969, the programming of these eight stations consisted of programs originated by six programming centers in Alabama, supplemented by national programming originated and distributed by National Educational Television. The University of Alabama programming center was in charge of the NET affiliation. Under its administration the eight stations carried, among other NET programs, the series "Black Journal," "On Being Black," and "Soul," as well as [*344] certain Vietnam moratorium coverage. However, since July 1, 1969, all final decisions as to programming are made by the AETC. It has apparently refused to clear for any of the NET programming listed above, and we have received a substantial number of complaints because of this.
The Commission referred these complaints to AETC for its comments. In its reply, it explained the change in policy as follows (I have appended my comments):
(1) AETC's six programming centers are given scheduling priority over available NET programs. Comment: i have long emphasized the importance of locally originated television programming and am glad that the Alabama educational network is able to generate substantial amounts of its own programming. But a balanced service also requires programming designed for the entire country, which usually involved higher production budgets because of this greater exposure. Moreover, this response does not explain the elimination of all, or nearly all, of the NET programming featuring Negroes or dealing with their problems. Presumably AETC is still clearing for some NET programs despite its greater emphasis on local productions. Why does it not include in the national programming it still carries some of the series dealing with racial matters, since Alabama has a substantial black population and certainly shares the problems in this area which are dealt with in these programs.
(2) "NET programs containing lewd, vulgar, obscene, profane or repulsive material have no place in the crowded AETC schedule." Comment: This supporting data for the conclusionary statement are completely inadequate. AETC's general manager, Mr. Hurlbert, lists five single programs, indicating that in his opinion they contained offensive language or situations -- one each for the series "The Show," "Black Journal," "hospital," "Soul," and "NET Journal." In the first place, there is no reference to "On Being Black," one of the series deleted by AETC. Secondly, it is impossible to form any valid impression about the matter he objects to without knowing its context. Mr. Hurlbert is offended by the use, twice, of a four letter word in a poem opposed to the use of drugs and complains of the presentation of situations he finds unpleasant though they are clearly facts of our modern life with which we must cope. But most important, he has found fault in each case with only one program but has deleted the entire series. It is hard to believe that my colleagues are willing to accept the claim that isolated use of this language in a few episodes justifies cutting the public in Alabama off from widely praised series which have been, and still are, carried by most other educational television stations. It is true that a licensee is responsible for all he broadcasts and can therefore censor any matter offered for his use except the statements of candidates for public office. But he must exercise this power responsibly and cannot exclude ideas with which he disagrees or all factual or fictional situations which offend him. It may be that Mr. Hurlbert thinks he is performing a great service to the public by impossing his very restrictive programming, but I doubt that the public really benefits -- and a good many have complained to us.
[*345] (3) NET affiliate contract requires a NET program be run in full, consequently the AETC cannot delete portions of program material which it may deem offensive. Comment: Assuming the validity of his efforts, he could refuse to clear for particular episodes while continuing to carry those programs in the series which contain to offensive material.
(4) AETC took over NET affiliation to remedy technical problems and to divide the programming more equally among the six centers. Comment: There is no indication of the nature of the alleged technical problems, and no demonstration that the change has balanced the time allotted to the six centers. This may be a valid point, but we have no basis for evaluating it.
(5) AETC has encouraged black participation in local productions. In an additional filing to respond to a later complaint, Mr. Hurlbert listed 257 programs (for a total of 217 hours of broadcast time) presented between September 1, 1969, and March 27, 1970, which were either integrated or involved only Negroes. Comment: That list includes 155 hours of "Sesame Street," which is not local. The remaining 62 hours includes programs in which Negro performers are presented, a Negro teacher is used, or Negroes are somehow "involved" or for which the audience was integrated. While I applaud this use of Negroes in local programming, I do not think this in any way replaces the national programming which has been deleted, which is presumably of higher quality because of the greater resources available for its production. While these local programs serve to get blacks on the television screen, it is not clear that any of them provide a forum for the expression of the opinions of Negroes or the discussion of their problems. It may be these very features of the displaced national programming which make it offensive to Mr. Hurlbert.
(6) No Vietnam Moratorium coverage was presented because it was felt that it had been adequately covered by the networks. Comment: I take it that this refers to the three national television networks. It appears likely that the Alabama educational stations cover some areas which do not receive full three-network service and therefore have special need for the supplemental educational service. But even in markets with three network services, the sometimes quite different approach of non-commercial television is of value. Apparently the complainants felt deeply about the loss of NET coverage despite the availability of commercial service.
I think this indicates that AETC's response falls far short of really answering the complaints, and that in some parts it gives rise to further questions. I did not propose that we designate these renewals for hearing, but did feel that we should push our investigation farther. Alabama is a southern state, which, in my judgment, needs the insights of national as well as local programmers on the problems of the Negro -- as we all do. It appears that a majority of the members of AETC have been appointed by Governor George C. Wallace or his wife during their respective terms in office. The sudden elimination of all, or nearly all, of the NET programs dealing with Negroes certainly seems unusual, and the explanations offered are not totally convincing. The one paragraph in the majority's letter which disposes of [*346] the matter consists of vague generalities which may generally be sound, but which do not come to grips with the issue here. I believe my colleagues have simply glossed over the whole matter. I feel strongly that we should have investigated further before acting on the renewal application.
This may not seem like much, but it makes a difference.
-- CAMUS, Between Yes and No.
The Alabama Educational Television Commission, under the guise of cleaning the airwaves of "obscenity," has succeeded today in getting this Commission's imprimatur of approval for the AETC's blotting out of a substantial portion of NET's black-oriented programming over Alabama's eight-station educational network. I dissent.
The complaint file in this matter clearly discloses the extent to which the facts are genuinely confused. This is, in other words, precisely the kind of instance in which the Commission should attempt to find out what's going on before it disposes of this serious matter. How we can justify our failure to at least hold a hearing is beyond me.
The complainants seek an explanation for the loss over Alabama's airwaves of several nationally-known black program series -- "Black Journal," "On Being Black," "Soul," and the critically acclaimed "Denver Black Panther Trial."
Among many points and questions that could be raised, two seem especially important:
1. Why couldn't the Alabama stations just pre-empt objectionable shows rather than blotting out a whole series of programs? We today allow Alabama’s network to burn down the barn to trap a lone rat that I am not sure is even there.
2. The complaints also raise a very serious question of whether Alabama ETV can now be adequately serving the black community. From what few facts are available, it appears that for the past year Alabama ETV has presented integrated programming less than 10 percent of the time.
Is this adequate for a state whose population is 30 percent black? I think not.
We have traveled this wearisome road before. This Commission once before renewed the license of a southern station accused of racial discrimination in programming. We were reversed. United Church of Christ v. F.C.C., 16 P. & F Radio Reg. 2d 2095 (No. 19,409, D.C. Cir. June 20, 1969).
We need to heed the warnings of the Kerner Commission:
The absence of Negro faces and activities from the media has an effect on white audiences as well as black. If what the white American reads in his newspapers or sees on television conditions his expectation of what is ordinary and normal in the larger society, he will neither understand nor accept the black American. By failing to portray the Negro as a matter of routine and in the context of the total society, the news media have, we believe, contributed to the black-white schism in this country.
[*347] Report of the National Advisory Commission on Civil Disorders 383 (Bantam Book Ed. 1968).
We cannot know what a full investigation or hearing might disclose. I do not pass judgment on the facts at this time. I am appalled, however, at my colleagues refusal to even find out what those facts may be in a case in which we have so many distinguished complainants making such serious charges.
Camus once described an incident of racial discrimination, brushed over by society, by saying, "This may not seem like much, but it makes a difference." The majority today brushes aside what may be much more. In any event, the appearance as well as the reality of this Commission's concern does make a difference.
I may wish to issue a more thorough analysis of this case in the future. For now, however, this must suffice as an expression of concern that the FCC's undistinguished record in the area of race relations has not been improved by today's action.
DISSENTING STATEMENT OF COMMISSIONER H. REX LEE
I dissent to the majority's action of granting the renewals of the eight Alabama educational television stations without first obtaining additional information from the licensee concerning its programming policies.
On the basis of the information before us, I did not feel that the renewal applications should have been designated for hearing; however, sufficient questions had been raised to justify further inquiry.