FEDERAL COMMUNICATIONS COMMISSION
27 F.C.C.2d 887
RELEASE-NUMBER: FCC 71-127
FEBRUARY 3, 1971
[*887] LEE ENTERPRISES, INC., Station KGLO-TV, 112 North Pennsylvania Avenue, Mason City, Iowa 50401.
GENTLEMEN: This refers to the Commission's letter of inquiry and your reply dated December 18, 1970, regarding station KGLO-TV's reduction of power on November 22, 1970.
You state that permission to carry the November 22, 1970, Minnesota Viking-Green Bay Packer football game was granted by CBS only upon the understanding that television station KGLO-TV would reduce its power by 20%. Without notifying or requesting authority from the Commission, KGLO-TV, on November 22, 1970, deliberately operated its transmitter at 80% of its authorized power between the hours of 7:30 a.m. and 3:45 p.m. Although you state that similar reductions in power in order to carry future Viking games will not occur, you allege that the reduction of power and the lack of notification did not violate the provisions of section 73.689(b) of the rules.
Section 73.689(b) of the rules states, in pertinent part, that "the operating power shall be maintained as near as practicable to the authorized power and shall not be less than 80 percent nor greater than 110 percent of authorized power...," except when it is technically impossible to attain authorized power [underscoring supplied]. Although this rule provides an operating tolerance of 80 to 110 percent to accommodate moment-to-moment variations such as might be caused by normal primary supply voltage changes, it was intended that television stations would closely monitor and make necessary adjustments in order to maintain their authorized power. Under no circumstances may the operating provisions incorporated in the rule be interpreted to mean that, except for unavoidable technical causes, intentional operation at other than the authorized power would be in compliance with the rule. Whenever a station desires to operate at reduced power for any reason, it must first secure authorization from the Commission.
[*888] It is clear that your deliberate reduction of power on November 22, 1970, constituted a violation of section 73.689(b) of the Commission's rules. However, in view of your explanation of the circumstances under which you reduced power, and your promise that similar reductions would not occur in the future, no further action is contemplated at this time.
Chairman Burch concurred and issue a statement. Commissioner Robert E. Lee, was absent. Commissioner Johnson dissented and issued a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING STATEMENT OF CHAIRMAN BURCH IN RE LETTER TO LEE ENTERPRISES, INC.
There's a great deal less there than meets the eye. -- Anon.
For those readers in the east, south, central, and west, who peruse the prose of this Commission, the dissent of Commissioner Johnson issued this day in Letter to Lee Enterprises, Inc. was a little disappointing. As has become his custom in these matters, his rhetoric has outstripped the facts.
A casual reader of Commissioner Johnson's dissent could only conclude that (1) the monster of capitalism had again triumphed over a sleepy, overly-protective Commission, and (2) only the clear-eyed protector of all that is right and proper was aware of this menace; and like the biblical voice in the wilderness is crying out to protect the public.
Let's examine the facts. There is a serious problem presented. An engineer probably would not use Commissioner Johnson's snappy title, "The Great Fuzz Out", since reducing a station's power 20% below its normal power would result in a location formerly having a field strength of 47 dbu being reduced 1 dbu (4.5%) and would draw in the predicted Grade B contour only very slightly (about 3% reduction in locations). However, there is no question but that such a reduction is wrong even if it affects only a relatively few viewers -- and indeed, even if it affected a single viewer. Our rules provide for operation below normal power because of technical problems, and not to accommodate a football league or its contracting network.
From Commissioner Johnson's dissent, you would conclude that the Commission is indifferent to this problem. The fact is that the Commission, on its own motion and not that of Commissioner Johnson, decided on the following course of action:
(1) It approved a letter prepared by the staff advising KGLO of its violation of the rule, and that no such violations were to occur in the future.
(2) It directed that a letter be sent to CBS, stating that it shared in the blame for the violation and that no such violations of the rule should be promoted in the future.
(3) It directed that a public notice be issued so that all licensees and networks will be aware of the requirements of the rule in this context.
[*889] (4) It requested the staff to study generally the problem of sports black-outs, and the Commission's possible role, if any, in alleviating this problem.
These actions, as to CBS and the issuance of a public notice, apparently caught Commissioner Johnson by surprise. You would think that the text of his dissent would be revised greatly to deal with these significant new aspects. But no. Commissioner Johnson, being of the school that never lets new facts interfere with a good dissent, chose rather to add a footnote at the end of his dissent.
The footnote itself is most interesting. It states that issuing the public notice informing the broadcast industry of the rule's requirement in this context is just a "fillip" which only makes matters worse. This is baffling. Commissioner Johnson fears that there may be similar violations not known to us -- and yet does not think it serves the public interest to give the widest currency to our action, so that all broadcasters will be made aware of their responsibilities in this respect.
The part of the footnote dealing with CBS is just as odd. It says that, first, news of our decision would undoubtedly have come to CBS's attention without our letter. In view of our public notice, that is true, but it misses the point. The Commission wanted CBS to know that part of the blame for KGLO's action clearly rested on the network.
But, says Commissioner Johnson, there are no sanctions against CBS, blithely ignoring the strictures of the Act which proscribe a forfeiture against CBS. What action then does Commissioner Johnson think the Commission should take against CBS? Would Commissioner Johnson move to revoke all or some of CBS's licenses on this ground? Quelle homme! Quelle regulator!
The only option open to the Commission which we did not take was to impose a forfeiture of $1,000 or less upon KGLO-TV. The facts here show that on November 20, 1970, CBS notified KGLO-TV that it would not receive the scheduled Minnesota-Green Bay contest because of the ability to receive the signal in the Minneapolis area; that after several conferences between CBS and the station, it was agreed that KGLO-TV would receive permission to carry the Minnesota-Green Bay game provided the station reduced its power by 20%; that the licensee, in response to a December 8 letter from the Commission, advised us that prior to making its decision to reduce power, it attempted to contact its Washington legal or engineering counsel but was unable to do so, and that since it had publicized its carriage of the Green Bay game and since that particular game was a traditional rivalry of great interest to its viewers, it believed it was in the public interest to reduce power in order to carry the game; that on November 23, 1970, KGLO-TV consulted with its Washington attorneys and was advised that the thrust of the rule was primarily to satisfy technical problems, and that the licensee should either operate at normal power or refuse to carry Viking games at reduced power; and finally the licensee stated that, in the future, it will either operate at normal power or will refuse to carry Viking football games.
[*890] Of course we could have imposed a forfeiture on KGLO-TV. But I submit that reasonable men could also conclude that in these circumstances the letter was sufficient and a forfeiture would seem a bit of an overkill. Possibly not a public relations overkill, but a judicial overkill. And the judicial function is the agency's task.
Well, enough of this tempest in a teapot. Grantland Rice once said, in effect, that it matters not whether you won or lost but rather how you played the game. On these facts, Commissioner Johnson (1) has not played the game well, and (2) does not even care about the score. I think that he should have passed rather than kicked. But then, would there have been any publicity in that?
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
For those who live in east, south-central, and west Iowa, in the fringe area of the signal from KGLO-TV (CBS), Mason City, Iowa, the Sunday afternoon of November 22, 1970, was a little disappointing for the viewers who turned on their television sets to watch the Minnesota Viking-Green Bay Packer football game. The game is a regional classic that always generates great interest. But on this particular Sunday, KGLO's picture was more fuzzy than usual.
The disappointed viewers found out sometime later, when KGLO's embarrassed management apologized over the air, that KGLO had fallen victim to corporate pressure from Vikings management in Minneapolis, as well as the Columbia Broadcasting System, to take the rather extraordinary step of actually reducing the station's transmitter power by 20 percent! n1
n1 Apparently management may also owe an apology to CBS and the Vikings. FCC staff informs us the station may have bungled its attempt and actually reduced power less than intended. Needless to say, that does not affect the intent of the Vikings, CBS, or KGLO-TV.
The Vikings had their own well-being in mind. The commercial football interests wanted to make sure that football fans in south-central Minnesota, who had access to KGLO's signal, would have to pay gate prices at the stadium to watch the game in below-freezing temperatures rather than stay home by a cozy television set to watch the game for free. In short, the Vikings management was more than a little greedy in attempting to protect its central Minnesota television blackout of the Packer game from KGLO's signal.
After some not-so-thinly-veiled threats that KGLO might lose the chance to televise the remaining Viking games, KGLO acquiesced and reduced its power -- in violation of our rules, Sec. 73.689(b), which authorize reductions only in genuine technical emergencies but not for every whim that may serve commercial interests. See, Iowa KGLO's Beaming of Minn. Grid In Backyard Is Not to Viking Liking; Iceland Hits Fans, Blackout a Bust, Variety, Dec. 2, 1970, at 32.
[*891] My quarrel with the majority's decision today is that it does not focus the blame properly. We softly pat KGLO and CBS on the wrist; but on the premise that it won't happen again the Commission takes no further action.
I would think that it would at least be necessary for the Commission to impose a modest forfeiture to help drive home at least the appearance of a little more regard for the public interest in an instance of such a brazen rule violation.
The more serious lapse in the majority's letters, however, is the failure to recognize adequately the role of the Columbia Broadcasting System and the Vikings management in inducing KGLO's violation of our rules. n2 There is substantial evidence to suggest that the blackout, that barnacle on the soft underbelly of the commercial football establishment, is causing similar problems -- and perhaps similar violations of our rules now unknown to the Commission -- for our many television licensees who find themselves on the fringes of other National Football League cities. Some have become so outraged at the abuses occurring because of the television blackout that at least one state is considering legislation that would ban the blackout altogether. Anti-TV Blackout Bill Urged, Fort Lauderdale, Fla., News, Jan. 20, 1971, at 10-C.
n2 After originally considering only the mild letter to KGLO, the Commission has now decided to make the empty gesture of sending CBS a letter as well. Needless to say, (1) news of our decision would undoubtedly have come to CBS' attention without our letter, and (2) no sanctions are contemplated. The latest fillip -- to issue a "public notice" informing the industry generally of the Commission rule on power reduction (without, however, discussing the circumstances of this case!) -- only makes matters worse.
Perhaps it is time for this Commission to formally ask the U.S. Department of Justice for a full-scale review of the blackout policy and the apparent abuses that have developed since the anti-trust exemption authorizing the blackout was adopted by Congress in 1961.
Few contest the simple proposition that Big Sports and Big Broadcasting have coalesced into a powerful relationship worthy of detailed study, perhaps leading to recommendations for corrective legislation. Consider this summary of the current situation:
Sports ceased being a game and became big business as soon as tv became a major factor in the sports scene.
Television can simultaneously be sport's greatest booster and the instrument of its eventual downfall. It's common knowledge that the American Football League could not have survived were it not for the money the National Broadcasting Company poured into it. On the other hand, overexposure on tv was a major factor in the demise of boxing as a major sport in this country. Today there are at least four major league baseball franchises which would cease to exist were it not for the money from tv contracts.
Every sports expansion in the last 10 years can be directly related to a tv market, with the prime example being the National Hockey League's expansion into six American cities (all in the same year). * * *
[*892] On a percentage basis, of all major sports, football has achieved the greatest rise in attendance and popularity. Football's tempo, speed, even its violence have attracted tv viewers in record numbers. Football, for some people, becomes a form of vicarious involvement in violence. For others, hidden aggression and frustration are released while watching a football game. Television's instant replay and stop-action techniques have contributed to the viewer's total involvement in the action. Football, through television, has created heroes with whom people identify. Joe Namath is the prime example of football's star system. His mystique and charisma has attracted large numbers of new viewers, especially from the distaff side. Special Report on TV Sports Shows, Media Decisions, January 1971, at 41-42.
Clearly, the rise of Big Sports and its intermarriage with Big Broadcasting has imposed on this Commission new duties to at least keep itself apprised of the trends and the new problems the changing times inevitably bring. Cf., Judge Girim's thorough opinion in U.S. v. National Football League, 116 F. Supp. 319 (E.D. Pa. 1953), cited in In Re Akron Telerama, Inc., 8 F.C.C. 2d 1127 (1967); American Football League v. National Football League, 205 F. Supp. 60 (D. Md. 1962).
There are serious questions as to whether the commercial football leagues and the television networks have over-stepped the limited boundaries the Congress set down in allowing for local "blackouts" of home professional games. The anti-trust exemption creating the blackout, P.L. 87-331, 75 Stat. 732 (1961), 15 U.S.C. 1291-95 (1964), was enacted to offset U.S. v. National Football League, 196 F. Supp. 445 (E.D. Pa. 1961), which had held that a league such as the National Football League was prohibited from entering into an agreement to sell the pooled television rights of its member clubs. In overruling the case, Congress passed an anti-trust amendment authorizing an area TV blackout of a game "within the home territory of a member club of the league on a day when such a club is playing a game at home."
While the blackout scheme has been generally approved by the courts, e.g., Blaich v. National Football League, 212 F. Supp. 319 (S.D.N.Y. 1962), many questions on its precise applicability have never been settled. Congressman Stubblefield of Kentucky has noted that it was Congress' intent that the blackout "be severely and strictly limited to the minimum degree." 109 Cong. Rec. 12135 (July 2, 1963). Nevertheless, there is every indication that the football interests and the networks have not held themselves strictly to the dictates of the legislation. The 75-mile radius of the blackout has now been enshrined as a basic tenet of the commercial football prerogative, even though the anti-trust exemption -- or anything else, for that matter -- does not give the blackout such wide latitude; the 75-mile radius is applied expressly to college football only. H.R. No. 1178, 87th Cong., 1st Sess. 1 (1961).
[*893] We in government, of course, are quite used to commercial broadcasting's prerogative of being a law unto itself. Nevertheless, this Commission could make an effective start at curbing the blackout abuse by at least serving stern notice -- backed up by a forfeiture -- that extreme tamperings like those in the KGLO case will not be tolerated in any way, and then following it up with some effort to ascertain and publicize the facts of this case and inquire into the full range of sports-TV abuse today.