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In Re AMENDMENT OF SECTION 74.1103(g)(2) OF THE COMMISSION'S RULES AND REGULATIONS

 

Docket No. 19320

 

FEDERAL COMMUNICATIONS COMMISSION

 

31 F.C.C.2d 844

 

RELEASE-NUMBER: FCC 71-982

 

September 30, 1971 Released

 

 Adopted September 24, 1971

 


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT; COMMISSIONERS H. REX LEE, WELLS, AND HOUSER ABSENT.


OPINION:

 [*844]  1.  Notice is hereby given of proposed rule making in the above-entitled matter.

2.  On April 9, 1971, Camellia City Telecasters, licensee of Station KTXL-TV (Ind.) Sacramento, California, filed a "Request For Declaratory Ruling Concerning Applicability Of Section 74.1103(g)(2) Of The Commission's Rules To Programs Nationally Syndicated For Release On A Same Day Basis." Section 74.1103(g)(2) of the Rules provides that:

The [CATV] system need not delete reception of a network program which is scheduled by the network between the hours of 6 and 11 p.m. Eastern Time, but is broadcast by the station requesting deletion, in whole or in part, outside of the period which would normally be considered prime time for network programming in the time zone involved.

Camellia requested a declaratory ruling that the above-quoted section is applicable not only to network programs, but also to programs nationally syndicated for release on a same-day basis.

3.  In support of its request, Camellia City argued that any program that is successful enough to be placed on a number of television stations throughout the country will have the same high degree of popularity as programs scheduled by networks in prime time.  Yet, numerous viewers may be deprived of the opportunity to watch these programs in prime time, which as a practical matter is the only viewing time available to people who work during daytime hours, because a higher priority station on a CATV system schedules the program at a time when its audience consists primarily of housewives and children.  n1

n1 Camellia points out, for example, that certain CATV systems carrying KTXL-TV which shows "the David Frost Show" during prime time, and certain higher priority stations, which air this show during non-prime time, grant exclusivity to these higher priority stations taking the position that the network programs referred to in Section 74.1103(g)(2) do not include syndicated programs.

4.  We find Camellia City's argument quite persuasive.  In the Second Report and Order in Docket No. 114895, 2 FCC 2d 725, 749-750, we stated that the reason for the non-prime time exception to the program exclusivity rule for network programs was to "* * * insure that such programs are available to the CATV subscribers in maximum viewing  [*845] hours." These considerations appear equally applicable to nationally syndicated programs released on a same-day basis whose broad popular appeal is comparable to that of network programs.  However, it would be misleading to the public to revise the above-quoted section through this opinion alone.  A direct revision of the rule is needed.  Accordingly, we are instituting this rule making proceeding.  Additionally, this proceeding will enable us to consider arguments that interested parties wish to make against the proposed rule change.

5.  Pursuant to applicable procedures set out in Section 1.415 of the Commission's Rules and Regulations, interested parties may file comments on or before November 8, 1971, and reply comments on or before November 18, 1971.  All relevant and timely comments and reply comments will be considered by the Commission before final action is taken in this proceeding.  In reaching its decision in this proceeding, the Commission may also take into account other relevant information before it, in addition to the specific comments invited by this Notice.

6.  Authority for the amendments proposed herein is contained in Section 4(i) and 303(r) of the Communications Act of 1934, as amended.

7.  In accordance with the provisions of Section 1.419 of the Rules, an original and 14 copies of all comments, replies, pleadings, briefs, and other documents shall be furnished the Commission.  Responses will be available for public inspection during regular business hours in the Commission's Broadcast and Docket Reference Room at its Headquarters in Washington, D.C.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


 

CONCURBY: JOHNSON (IN PART)

 

DISSENTBY: JOHNSON (IN PART)

 

DISSENT:

OPINION OF COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART

The Commission's rules governing cable television currently provide that a cable operator cannot cablecast a prime time network TV show from an imported station if the show also appears on a local TV station the same day.  n1 The purpose of this rule is to provide local TV broadcasting stations protection from the competition introduced by cable TV. 

n1 47 C.F.R.   74.1105(g)(2) (1971).

This case arises because we have not made clear whether or not this rule also applies to syndicated TV shows which are also seen across  [*846]  the country on a same-day basis, such as The David Frost Show.  Historically, syndicated shows have often been designed and distributed in such a way that individual segments would be seen on different days in different parts of the country.  The growth of same-day syndicated TV shows has been increased recently, and will be more by our rule making opening up the prime time hours to more non-network programming.

Camelia City Telecasters, licensee of Station KTXL-TV, Sacramento, California, asks us to declare that the rule regarding network shows also applies to syndicated shows.  That is, if a cable system imports KTXL's syndicated programs into another market, local stations cannot insist that the cable system black out KTXL's programs if KTXL is carrying in prime time a syndicated program intended for prime time, and the local station is carrying the same program the same day but not in prime time.

If we decide that the rule applies to syndicated shows, we will have broadened the opportunity of people "on the cable" to watch nationally-syndicated shows during prime time when the shows are most topical -- the day they are meant for national showing.

I agree with the majority's finding that Camelia City Telecaster's argument in favor of such a declaratory ruling is "quite persuasive," and concur with its adopting a Notice of Proposed Rule Making putting forward the change.

However, I dissent as to the majority's decision not to dispose of this issue through the issuance of a declaratory ruling.

It is quite clear that it is within the Commission's power to issue a declaratory ruling in this case, inasmuch as it would achieve the goal of "removing uncertainty" spelled out in the Commission's rules.  n2

n2 47 C.F.R   1.2. (1971).

I am not persuaded by the majority's protestations that "it would be misleading to the public" to hold that Section 74.1103(g)(2) applies to syndicated shows sent to stations around the country on a daily basis primarily for prime time showing.  I believe it would be less misleading to the public if we were to act forthrightly in this case and allow for greater viewing opportunities for those on the CATV system.

There is n indication of harm to the TV station which has decided to televise the show during non-prime time hours; I cannot see much difference between a show that happens to be sent to a local station through syndication and one which originates from an organized network.  For the viewer, the shows are often indistinguishable.  For people who work during the day, and are on the cable, it certainly would appear arbitrary if they were not able to see a show during prime time just because it was shown during the day on a local TV station.

Of course, I am not intimating that TV stations or any interested party do not deserve their day in court.  They have had it in this case.  Other parties will have it in the rule making.  It is a fact, however, that in this case we would be perfectly within our authority to issue a declaratory ruling validating the argument that we have herein labeled "quite persuasive." I believe the public interest compels that decision, and therefore dissent.


 

APPENDIX:

APPENDIX

A.  Part 74 of Chapter I of Title 47 of the Code of Federal Regulations is amended as follows:

1.  Section 74.1103 is amended to add a note after par (g) (2) as follows:

  74.1103 Requirements relating to distribution of television signals by community antenna television systems.

* * *

(g) * * *

(2) * * *

Note: The term "network program" includes programs nationally syndicated for release on a same-day basis.


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