In the Matter of PETITION OF COLUMBIA BROADCASTING SYSTEM, INC., FOR WAIVER OF SECTION 73.658(k)(1) OF THE COMMISSION'S RULES
32 F.C.C.2d 55
RELEASE-NUMBER: FCC 71-1036
October 12, 1971 Released
Adopted October 6, 1971
BY THE COMMISSION: CHAIRMAN BURCH ABSTAINING FROM VOTING; COMMISSIONER BARTLEY CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT IN WHICH COMMISSIONER JOHNSON JOINS.
[*55] 1. Columbia Broadcasting System, Inc. (CBS) has petitioned the Commission for waiver of Section 73.658(k)(1) of the Commission's Rules to permit affiliated stations of all networks to carry additional one-time only news and public affairs broadcasts in prime time during the 1971-72 season, and to permit affiliates of the CBS television network to carry two news series broadcasts in prime time on Sunday evenings during that season.
2. CBS moves under the provision of Section 73.658(k)(1) that "after October 1, 1971, no television station assigned to any of the top 50 markets in which there are three or more operating commercial stations, shall broadcast network programs offered by any television network or networks for a total of more than three hours per day between the hours of 7:00 p.m. and 11:00 p.m., local time, except that in the central time zone the relevant period shall be between the hours of 6:00 p.m. and 10:00 p.m." For the purpose of subparagraph 1 of this paragraph, network programs shall be defined to exclude special news programs dealing with fast-breaking news events, on-the-spot coverage of news events and political broadcasts by legally qualified candidates for public office. CBS states that most network news and information broadcasts, including network documentaries and news magazine types of programming, rarely, if ever, come within the stated exceptions. CBS cites as examples its CBS Television Network series "60 Minutes," and "Voices in Opposition," carried by CBS last September 5 in response to a Commission ruling requiring the broadcast of views opposing those expressed in certain appearances of President Nixon. Nor, it asserts, would broadcasts of most Presidential appearances themselves qualify as exceptions other than in rare instances where they might involve "on-the-spot" coverage of news events. CBS further notes that although broadcasts by candidates for public office are exempt from the rule, broadcasts made on behalf of candidates by [*56] political supporters and political parties, and news broadcasts dealing with pre-election and pre-convention activities, are not exempt.
3. CBS believes that the prime time access rule should not apply to network news and public affairs programs, but recognizes that the Commission has given careful attention to this general issue in the basic rule making proceeding, and does not seek at this time a general exemption for all news programs. It does specifically seek two types of waivers. The first is that we grant a waiver for all stations during the 1971-72 season exempting news and public affairs broadcasts that are not part of a series (estimated by CBS for itself as being from 15 to 25 programs). The second is for CBS affiliates only, to enable CBS to offer, and its affiliated stations to carry, the weekly CBS "60 Minutes" series, heretofore announced for 6:00-7:00 p.m. CNYT, at 6:30-7:30 p.m. Sunday nights, n1 and the CBS Sunday News with Dan Rather at 10:30 or 10:45 p.m., instead of at 11:00 p.m., immediately following the conclusion of the CBS network prime time schedule on Sunday night. The net effect of these two Sunday evening changes would be to permit the scheduling of an additional 45 or 60 minutes per week of news and information within the 7:00-11:00 prime time period. The waivers are opposed by Westinghouse Broadcasting Co., Inc., which asserts that they are unjustified and in fact constitute requests for amendment of the rule.
n1 CBS states that it has announced a 1971-72 network schedule which commences at 7:30 p.m. CNYT on Sundays, the evening on which the National Broadcasting Co., Inc. was given a waiver of the prime time access rule during the 1971-72 season to permit its affiliated stations to carry an additional half hour of programming in lieu of a half hour on another day of the week.
4. We are not persuaded that the waivers for Sunday evening should be granted. As Westinghouse urges, these waivers would forclose Sunday evening to independent programming without any ameliorating reduction by CBS of its evening schedule on any other day of the week. This would weaken the objective of the rule, and might do so to the point that a fair test of the rule would be precluded. n2 However, we believe that the public interest would be served by a grant of a waiver for one-time only news and public affairs programs for the period requested. This will serve to facilitate the presentation of public affairs programs during an election year. While we might require the filing of individual waiver requests for each program, we do not believe that it is necessary. We also note that we are not now reconsidering our finding in the basic rule making proceeding that only certain news-type programs should be exempted. This waiver is only for the limited period requested, a period during which stations are already free to utilize off-network series and feature films which will otherwise not be permitted to be used in substitution for the network programs precluded by the rule. In view of the limited duration of the waiver we are granting, and the fact that we have not changed the permanent policy or terms of the rule, we do not think there is involved an amendment requiring rule making proceedings.
n2 We note here that this is not the situation referred to in footnote 36 of our May 4, 1970 Report and Order, 23 FCC 2d at 395, where we stated that we would grant waiver for stations carrying one hour of local news who wish to carry their half hour network news broadcast at 7:00 p.m. instead of 6:30 p.m. CBS here is merely desirous of moving two Sunday evening news programs into the 7:00 to 11:00 p.m. period.
[*57] Accordingly, IT IS ORDERED, That the petition for waiver filed by Columbia Broadcasting System, Inc. on March 31, 1971, is GRANTED to the extent indicated above and is otherwise DENIED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: BARTLEY (IN PART)
DISSENTBY: BARTLEY (IN PART)
I concur in denying waiver requests for the two Sunday evening CBS programs; and dissent to granting blanket waivers to all networks for one-time-only news and public affairs programs during the 1971-72 broadcast season.
In this case, as in similar ones for waivers of the "prime time access" rule, I believe that it is important to point out what is, and what is not involved.
Whether the station may broadcast the network programs is not involved. It may. The only question involved is whether the program, work television programming on a station in certain top 50 markets is limited during "prime time" of 7-11 P.M. (6-10 P.M. Central Time).
If the special program is not counted as part of the three hours, the station may then broadcast more than the three hours of network programming and less non-network programming in its prime time.
The broadcast of one-time only news and public affairs programs by a network is part of a long-standing practice of pre-empting one program for another. Having made the judgment to substitute one program for another, a network is hard pressed to ask for additional prime time, except for its own self-serving interest of getting more of its commercial programming broadcast by a local affiliate. I do not see this as a public interest reason for a waiver.