In the Matter of REQUEST FOR WAIVER OF THE "PRIME TIME ACCESS RULE" (SECTION 73.658(K)) FILED BY DEMOCRATIC NATIONAL TELETHON COMMITTEE FOR JULY 8-9 TELETHON ON ABC
FEDERAL COMMUNICATIONS COMMISSION
35 F.C.C.2d 770
RELEASE-NUMBER: FCC 72-547
July 7, 1972 Released
Adopted June 21, 1972
BY THE COMMISSION: CHAIRMAN BURCH ABSENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
1. The Commission here considers a "Petition for Waiver of the Prime Time Access Rule" filed on June 15, 1972, by the Democratic National Telethon Committee (Democratic Committee). This group plans a "telethon" on the ABC television network from 10 p.m. E.D.S.T., Saturday, July 8, to 5 p.m. E.D.S.T., Sunday, June 9, to raise funds to pay off the party's large debt, and asks for waiver in connection with it, in connection with broadcasts in 6 of the top 50 U.S. markets which are in the Pacific Time zone, plus one (Phoenix) which is in the Mountain time zone but does not observe day light saving time. n1 Waiver may be necessary in these places because the telethon -- to be carried "live" throughout the U.S. -- will begin at 7 p.m. P.D.S.T. (and 7 p.m. M.S.T. in Phoenix) and thus result in 4 hours of network programming during prime time in those places, even though it will involve only one hour of prime time in the Eastern and Central zones.
n1 The Pacific Coast markets involved (as corrected by the Democratic Committee in a letter of June 16) are Los Angeles, San Francisco, San Diego, Sacramento, Portland and Seattle.
2. In support of its request, the Democratic Committee asserts the following considerations:
(a) The waiver requested is of very limited scope, affecting only one time zone and one city in another (as pointed out in earlier Commission decisions, the Pacific and Mountain zones have less than 20% of the nation's "top 50 market" TV homes).
(b) The telethon is both live (thus distinguishing it from the ABC Summer Olympics matter in which we recently denied waiver) and a highly unusual event, run as a prelude to a convention which occurs only every four years, and therefore waiver here would not have precedential significance as would grant in other types of cases such as sporting events.
(c) Since political candidates are scheduled to appear during 15 to 30 minutes, and such broadcasts are excluded under the rule, the waiver would involve only 30 to 45 minutes of time, rather than a full hour. n2
n2 The petition itself states that candidates will appear 15 to 30 minutes of every hour. If this were actually true, no waiver would be required, since the time devoted to such appearances is excluded from the three-hour computation, under Section 73.658(k)(2). However, further information from ABC and counsel for the Committee indicates that this is not the case; the total of candidate time during the Saturday portion of the telecast will be between 15 and 30 minutes. Accordingly, waiver is required, though a smaller amount of time (other than candidate time) is involved.
(d) The program must be run continuously (for one thing because results are announced as the pledges from viewers are received), and thus the later broadcast of a particular segment would be misleading and thus defeat the purpose of the telethon.
(e) Extensive collection procedures, involving manpower and communications equipment, must be set up, and it would work a hardship on the Committee for these to have to be set up and kept idle during the first hour in the Western places involved.
3. Expedited action is urged, in order to permit arrangements with ABC, and ABC with its affiliates, to be finalized; action is sought by June 21, if possible.
DISCUSSION AND CONCLUSIONS
4. We are of the view that the requested scheduling should be permitted in this case, taking into account particularly the unusual nature of the programming involved, and the very limited extent of waiver which is requested. In both respects, the situation comes within the scope of our ruling in National Broadcasting Company, Inc., FCC 72-184, 33 FCC 2d 743 (February 1972), where we granted NBC a waiver to permit its Pacific and Mountain zone affiliates to carry two hours of regular programs in addition to the Academy Awards and Miss America programs, thus permitting the same type of scheduling as that in the Eastern and Central zones on the evenings involved.
5. We emphasize that in ruling herein that this telecast is permissible from the standpoint of the "prime time access rule", we are not passing on any other aspects of the matter which may be involved.
6. Although not covered in the petition itself, certain other facts mentioned by ABC should be noted. ABC plans to run a two-hour movie that evening, during prime time but before the telethon, in all zones except Pacific. Also, in all zones except Pacific, the telethon will be interrupted after the first hour (at 11 p.m. E.D.S.T., etc.), for a quarter-hour of network news and a quarter-hour of local material, the telethon resuming again at 11:30 E.D.S.T. This presents no problem in the Central zone or that portion of the Eastern zone which is on daylight-saving time, and as indicated these facts do not apply in the Pacific zone; but waiver is, or may be, necessary to accommodate all of this material in the Eastern zone markets not on daylight saving time (Detroit and Grand Rapids) and in the Mountain zone. Under the principle of the NBC "Miss America" decision, waiver in these situations is appropriate and is granted herein.
7. In view of the foregoing, IT IS ORDERED, That stations owned by or affiliated with American Broadcasting Companies, Inc. (ABC), in the Pacific and Mountain time zones, and those portions of the Eastern time zone which do not observe daylight saving time, MAY PRESENT, on Saturday evening, July 8, 1972, more than three hours of ABC network programming during their prime hours, provided that all such material consists of Democratic telethon programs, the ABC movie run on the network that evening, and 15 minutes of late-evening network news.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
In my judgment no waiver of the prime time access rule is required in this instance, and I would not grant the waiver. The rule expressly provides that it is not applicable to "political broadcasts by legally qualified candidates for public office." Sec. 73.658(k)(2). I would simply give the rule a reasonable interpretation and apply it as drafted. *
* I cannot fathom the basis for the majority's contorted interpretation of Sec. 73.658(k) in footnote 2 as including only that portion of a political use of broadcast facilities when the candidate is actually on camera -- an interpretation that would define as "nonpolitical" a goodly number of the 30-second political commercial announcements, let alone longer broadcasts, and may be in conflict with an earlier Commission interpretation. See Gray Communications Systems, Inc., 19 F.C.C. 2d 532 (1969).