In the Matter of REQUESTS BY THE THREE NATIONAL TELEVISION NETWORKS FOR WAIVER OF SECTION 73.658(k) OF THE COMMISSION'S RULES (CERTAIN SPORTS EVENTS AND OTHER INDIVIDUAL PROGRAMS)
FEDERAL COMMUNICATIONS COMMISSION
32 F.C.C.2d 58
RELEASE-NUMBER: FCC 71-1037
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; COMMISSIONER WELLS CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.
[*58] 1. The Commission here considers various requests for waiver of the "prime time access" rule, Section 73.658(k) of the Commission's Rules, which, in general, after October 1, 1971, limits television stations in the top 50 markets to the presentation of no more than three hours of network programming each evening during prime time. "Prime time" is defined as 7 to 11 PM, local time, except 6-10 PM in the Central time zone. The present document deals with various requests filed by the three national networks n1 during the last three months, seeking waivers of the three-hour limitation in connection with various sports events and, for NBC, a request also for waiver in connection with two individual programs generally carried by NBC stations simultaneously with their occurrence: the motion picture Academy Awards program in April 1972, and the finals of the "Miss America" contest in September 1972. None of the requests was opposed. Other requests by networks and stations are discussed in other documents adopted today.
n1 American Broadcasting Companies, Inc. (ABC), Columbia Broadcasting System, Inc. (CBS) and National Broadcasting Company, Inc. (NBC).
2. NBC and CBS requests concerning individual baseball and football games and one golf tournament ("runover" programs). In its request filed August 31, 1971, NBC requests waiver in connection with the presentation of various professional baseball and football games between October 1, 1971 and January 1972, three Saturdays of NCAA basketball in March 1972 and the Bob Hope-Golf Classic on a Saturday and Sunday in February 1972. This sports coverage normally concludes before prime time begins, since all of the baseball and football [*59] games begin at about 4 PM or earlier (E.T.) n2, the latest of the basketball games is expected to begin at about 5 PM (E.T.) and last less than two hours, and the golf coverage, beginning at 5 PM (E.T.) is expected to be over by about 6:30. However, NBC points out that these games may involve overtime, "sudden death" playoffs, extra innings, etc., or possibly weather delays, and therefore conceivably could run a few minutes into prime time. Since it wishes to be able to present its regular three hours of prime time evening programs on these days, it requests a waiver for the Eastern and Central time zone to the small extent it may be necessary. The waiver is requested for any game starting at about 4 PM E.T., and one NCAA basketball double header starting at 3 PM E.T. NBC also requests a waiver, in the event it is necessary, in connection with one World Series baseball game which will be broadcast at night, together with a 30-minute pre-game show, the former starting no earlier than 7:30 PM (E.T.), and the two preempting regular network shows for that night. The CBS request filed July 9, 1971, is for similar situations in professional football only (about 11 dates).
n2 The baseball and football situations include 20 dates, all Saturday or Sunday except two World Series games. On two or possibly three Sundays in October, the programming will be World Series games starting at about 1 PM E.T., followed by pro football at about 4 PM E.T., or some variation of that arrangement.
NBC estimates that baseball games take normally about 2 1/2 hours, pro football 2 3/4 hours, and basketball no more than two hours. It is stated that of 27 pro football games presented by NBC in the fall of 1970 (starting at about 4 PM E.T.), only one ran after 7 PM E.T., and that by less than 10 minutes.
3. This type of situation was recognized in the May 1970 decision adopting the "prime time" rule (Report and Order in Docket 12782, 23 FCC 2d 382), where we stated in Footnote 35 that, while live sports events were not exempted as such from the rule, the Commission would consider requests for occasional waivers where such events normally conclude before the beginning of prime time but may run into it (and also for events beginning in prime time and usually less than three hours but occasionally more). The CBS request, and the NBC requests mentioned above, clearly fall within this principle, and accordingly we are granting waivers in these cases as requested.
4. Requests by ABC in connection with individual events. ABC requests waiver in connection with sports events on twelve days (all Saturday or Sunday) from October 9, 1971, to February 6, 1972. Unlike the CBS and NBC requests, these apparently contemplate "runover" from afternoon into prime time, or more than 3 hours during prime time, as a matter of regular course. The first 5 involve Saturdays this fall, when ABC carries NCAA football. One (November 20) is for waiver to carry two late afternoon and evening games which will occupy all or nearly all of the four prime time hours in the Eastern and Central zones. Another (November 27) involves an afternoon NCAA double header, lasting from about 1 PM to 7:30 PM E.T., with a following program on college football generally until 8 PM; waiver is requested in the Eastern and Central zones so that later regular evening programming may also be carried. The request for November 6 involves a football game (beginning at 9:30 PM E.T.) plus a 1 1/2 hour movie; waiver is not required in the East but is in the Central and other zones. A request for October 9 contemplates football [*60] until 6 PM E.T. and then the regular Saturday "Wide World of Sports" program until 7:30, requiring waiver in the Eastern and Central zones if regular evening programming is to be carried thereafter. The October 16 NCAA game coverage is expected to run until 7:30 E.T., and waiver is requested in the Eastern and Central zones so that regular evening programs may follow. The other 7 events listed include two holiday-season Bowl games (East-West and Hula Bowl), two golf tournaments each with coverage on both Saturday and Sunday, and an NBA basketball game. Coverage of the events will run until 8 PM E.T. in two cases and 7:30 PM E.T. in five, and waiver in the Eastern and Central zones is therefore requested so that regular evening programming may also be presented.
5. These requests present a much greater problem in terms of the rule and its objectives than do the NBC and CBS matters dealt with above, because in general they contemplate incursions into prime time by sports coverage as a matter of plan and regular course, rather than more or less fortuitously, such coverage to be presented along with the usual amount of evening network programming, usually entertainment. Thus, of the 12 events, 10 involve sports running till 7:30 or 8 PM (E.T.) apparently to be followed by the customary three hours of network prime-time material.
6. These requests present a much greater problem in terms of the rule and its objectives than do the NBC and CBS matters dealt with above, and in our view they must be denied (except that we are granting waiver for the two occurring in the immediate future, during October, in order to avoid last minute disruptions). In general, they contemplate use of prime time for sports coverage as a matter of plan and regular course, on a substantial number of days, n3 to be presented along with the usual amount of network prime time programming, usually entertainment. Thus, ten of the requests are to use 30 minutes or an hour of the early part of prime Saturday or Sunday hours for sports coverage, followed apparently by the usual three hours of regular programs. Another, for November 6, involves (in all time zones except Eastern) 2 1/2 hours of football plus 1 1/2 hours of network movie entertainment. Clearly, these proposals go far beyond the matters referred to in "footnote 35" n4 and grant of the requests would be inconsistent with the spirit and purpose of the rule.
n3 It is roughly four months, or about 120 days, between now and February 6, 1972, the date of the last request. 12 dates within this period means roughly one waiver every 10 days.
n4 This is even more true because some of the prime-time sports coverage proposed is not "live coverage" at all, but a post-game general review of college football (November 27), or (October 9) the "Wide World of Sports", which has no particular relation to the preceding football game except that both deal with sports.
7. We point out that there is not generally involved here the question of whether the network may present, and its affiliates may carry, these popular sports events in prime time. Of course, they may, and to their completion. What is involved is whether these events should be exempted from the permissible three hours of network prime-time programming on these nights, so as to permit the networks to present and their affiliates to carry the full network prime time lineup in addition to the sports material. To permit this would be to abandon to a very substantial extent the spirit and objectives, as well as the letter, of the rule, and we cannot agree that this should take place. To put it otherwise, [*61] what we are saying is that if the networks are going to present sports during prime hours, they should plan to do it by preempting their regular programs, or "on their own time", rather than through incursion into the hours which have been made available to non-network sources under the rule.
8. The foregoing observations apply less to one of the ABC requests, for November 20, when it asks waiver to present an NCAA football "double header", the last portion of the afternoon game and all or most of the evening game occurring during prime hours, with no regular network programs to be carried. Thus, in this one instance, it appears that all of the prime hours (in the Eastern and Central zones) will be used for live sports coverage, or at least live coverage plus related material concerning college football that day. It could be argued that this is comparable to the New Year's Bowl game waiver previously granted to NBC. However, while this is different from the other requests, we are not persuaded that a regular-season football "double header", on one of several Saturdays during the season, falls into the same category as the historically well-established New Year's Day situation. Grant of waiver in this not unusual case -- to permit four hours of sports coverage in prime time -- is to likely to serve as an undesirable precedent for expanding the three permissible three hours to four on a large number of occasions, for various reasons. n5 Therefore this request is denied along with most of the others. n6
n5 There are, of course, many Saturday afternoon college games and some Saturday evening college games on numerous dates each fall. To the extent that ABC wishes to present one afternoon and one evening game, it should be able to find combinations (e.g., a Saturday afternoon game starting early) which do not involve this prime-time problem.
n6 ABC's argument, concerning the fact that waiver is sought only for certain time zones rather than the entire country, is discussed below in connection with two NBC reuquests involving the same type of situation.
9. Therefore, as far as their merits are concerned, we conclude that all of the ABC requests concerning specific events this fall and coming winter must be denied. However, it is also noted that two of these events are scheduled for the immediate future, during October (October 9 and 16). ABC's counsel in a letter of October 5, 1971, pointed out the disruption which would result if the request in the October 9 case (involving "Wide World of Sports") were denied at this late date. Accordingly, the two waiver requests for October dates are granted. n7
n7 In granting two of ABC's specific waiver requests, we have acted in its case comparably with the two sports waivers previously granted NBC, which ABC urges as one reason for favorable treatment.
10. NBC and ABC requests concerning the 1972 Olympic Games. Both NBC and ABC request a blanket waiver, to permit affiliates to carry up to 4 hours a night of their programs during the periods of the 1972 Olympic Games. NBC's request is in connection with the winter Olympics from Japan in the first half of February 1972; that of ABC is in connection with the summer Olympics from Germany during the period August 25-September 10, 1972. NBC's request is quite general, stating that it is not possible now to predict when the coverage will take place, or what will be carried, the latter depending on what will be of most interest to the public. It is stated that some of the events are expected to be presented "live", via satellite. ABC is somewhat more specific, presently contemplating 7:30 to 11 each [*62] night, Monday to Friday, in two weeks at the end of August and beginning of September, plus weekend coverage which cannot now be predicted, for a total of 47 hours of prime-time and 19 1/2 hours of nonprime-time coverage.
11. The presentation of substantial Olympic coverage appears to be desirable and in the public interest. However, we are of the view that these rather general requests must be denied. Certainly this is true of NBC; it appears possible that that network may be contemplating only the type of practice discussed above in connection with ABC's individual requests, presenting some Olympic coverage in prime time in addition to its regular network lineup. If so, the statement set forth above is applicable. It appears that ABC contemplates on weekdays preemption of regular network prime-time programming plus an additional half-hour. Since these events occur only every four years, this could perhaps be considered. However, here also we must bear in mind the undesirability of permitting large-scale network incursion into prime time reserved for non-network sources, even when it is accompanied by preemption of their regular prime-time programs. In the absence of more specific information, including some idea of weekend programming plans, we must deny the ABC request also. n8 In both cases, the networks may wish to renew their request, with more specific information.
n8 Unlike NBC, ABC does not state that any of the programming will be "live", and, in view of the time differential between Munich and the U.S., it is doubtful that it would ever be presented simultaneously with its occurrence.
12. NBC requests concerning the Academy Awards and Miss America programs. NBC presents the annual Academy Awards program in April, and the finals of the Miss America contest in September, from 10 PM to midnight E.T., simultaneously in all of the U.S. (in contrast to most of its programming, which is delayed in the Mountain and Pacific zones). It wants to continue to present two hours of regular prime-time programming in addition on these nights. This presents no problem under the Rule in the Eastern and Central zones, where only one hour of the special program falls within prime time; but it does in the zones to the west, where all of the "special" falls within prime time and the regular programming, added to it, would exceed the 3-hour limit.
13. Despite the fact that these are irregular and in a sense "special" programs, and that the waiver would be needed only in two zones of the country in which the markets among them contain less than 20% of the prime-time homes in the total of the "top 50 markets" of the nation, we are of the view that waiver should be denied. n9 We have already mentioned the high importance which is and must be attached to preserving a substantial amount of desirable prime hours for non-network sources, free from network impingements; and that therefore, in our view, such preempting programs must be presented by the networks, generally and here, "on their own time" as far as prime hours [*63] are concerned. This is true, it appears to us, no matter where the "prime hours" involved are located. Thus, in those areas where more than one hour of the NBC special programs will be included in prime hours, we believe the network and its affiliates should be expected to present correspondingly less of regular material.
n9 ABC made a similar argument in connection with its requests for individual sports events: that none require waiver in all time zones. The point is of considerably less significance in its situations than it is here, since 11 of the 12 events involve waiver in both Eastern and Central zones, the large markets in them having a total of more than 80% of the nation's "Top 50 market" prime time households. In the other case, waiver is needed in all zones except Eastern, which means more than 40% of the "top 50 market" prime time households.
14. Request of ABC concerning two Michigan markets. ABC also makes one special request concerning its affiliates in Detroit and Grand Rapids, Michigan, arising from the fact that Michigan, in the Eastern Time zone, does not observe advanced or daylight saving time. An important feature of ABC's current programming is NFL football games on Monday evenings, starting at 9 PM Eastern time. During the month of October, October 11, 18 and 25, these will begin on the Michigan stations at 8 PM Michigan time. Even so, no problem would be presented except that, like most ABC affiliates, these stations have chosen to cut back on Monday nights to 2 1/2 hours of prime-time ABC programs in order to compensate for ABC's schedule of 3 1/2 hours on these days. Waiver for these affiliates to carry the Monday-night games is requested. It appears appropriate, and is granted.
15. In view of the foregoing, IT IS ORDERED, That:
(a) Stations affiliated or under common ownership with the Columbia Broadcasting System, Inc. (CBS) or National Broadcasting Company, Inc. (NBC) television networks MAY PRESENT, through January 23, 1972, without counting any of the time against the prime-time network programming permissible under Section 73.658(k) of the Rules, all of any World Series baseball game or professional football game beginning no later than about 4 PM (E.T.), or any two such games when the first begins no later than about 1 PM (E.T.), or any basketball game beginning no later than about 5 PM (E.T.); or coverage of the Bob Hope Golf Classic on Saturday and Sunday, February 12 and 13, 1972.
(b) Stations affiliated or under common ownership with the NBC network MAY PRESENT, on any night during October 1971 during which that network presents a World Series baseball game at night, up to 4 hours of network programming without being required to cut back network programming on another night.
(c) Stations owned by or under common ownership with the American Broadcasting Companies, Inc. (ABC) television network MAY PRESENT up to three and one-half hours of network programming during prime time on October 9 and October 16, 1972, without any requirement that they reduce their network programming on other nights.
(d) Stations affiliated or under common ownership with the ABC network in Detroit and Grand Rapids, Michigan, MAY PRESENT ABC football games on Monday nights during the month of October 1971, in their entirety, without counting more than 2 hours toward the time permissible under Section 73.658(k) of the Commission's Rules.
16. IT IS FURTHER ORDERED, That, the requests for waiver of Section 73.658(k) filed by American Broadcasting Companies, Inc. [*64] (ABC), on July 2, 1971, Columbia Broadcasting System, Inc. (CBS) on July 9, 1971 and National Broadcasting Company, Inc. (NBC) on August 31, 1971 ARE GRANTED to the extent indicated herein and in all other respects ARE DENIED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: BARTLEY; WELLS (IN PART)
At the outset, it should be made clear what is, and is not, involved in these requests for waivers.
The rule, of which waivers are sought, generally limits television stations in certain top 50 markets to three hours of network programming per night during "prime time" of 7 to 11 P.M. (6 to 10 P.M. Central Time) so that there may be greater diversity of program sources.
The waivers here requested for sports events fall basically into two categories:
(a) Those events which would normally end before the beginning of prime time but, because of unexpected delays, extend into prime time.
(b) Those events actually scheduled, in whole or in major part, during prime time.
There are no questions involved here of whether the station may broadcast the games in prime time or whether, if a game runs over into prime time, a station must cut the broadcast before the game is over. Those are not the questions. A station may broadcast the games in prime time, and it does not have to cut a broadcast before the game is over.
Any indication to the contrary must be considered misleading.
The only question here involved is whether the station which carries the network sports telecasts in whole or in part during prime time must count them as part of the three hours of network programming. For example, if the network telecast of a game consumes an hour of prime time, is the hour to be counted as part of the three hours?
Pursuant to the provisions of the "prime time access" Rule, it does count as part of the three hours.
Waivers of the Rule are sought here so that it is not so counted.
In my opinion, waiver for a network telecast of a sports event should be granted only when, due to unexpected delays in the event itself, the telecast runs over into prime time, or, if scheduled in prime time, runs over the three hours permitted the networks in prime time. The amount of time which the telecast thus runs over would not be counted against the three hours. The waivers which we herein grant are granted on that basis and, accordingly, I concur.
NBC requests waivers for telecasts of the Academy Awards program and the Miss America finals so it can present, additionally, two hours of regular prime-time programming (commercial) on those nights in the Mountain and Pacific Zones, thus giving it 4 hours instead of 3 in those zones. These are not unique situations. Rather, [*65] they are typical examples of long-standing network practice as to preempting programs. Once having made the judgment to pre-empt other programs, the network should not be permitted to have its cake and eat it too at the expense of derogating the public interest purposes of the rule. Accordingly, I concur in denying NBC's waiver requests for these programs.
DISSENTBY: WELLS (IN PART)
STATEMENT OF COMMISSIONER ROBERT WELLS, CONCURRING IN PART AND DISSENTING IN PART
I concur in these actions insofar as they would grant waivers to CBS and NBC affiliates in connection with afternoon sports programs which probably will not, but conceivably could, run into prime hours. I also concur with granting the two waivers to ABC affiliates concerning sports events in the next two weeks, but dissent to the refusal to grant waivers in the other 10 specific cases mentioned by ABC.