In the Matter of AMENDMENT OF PART 76 OF THE COMMISSION'S RULES AND REGULATIONS
TO GOVERN IMPORTATION OF RADIO SIGNALS BY CABLE TELEVISION SYSTEMS
Docket No. 19418 RM-1782
FEDERAL COMMUNICATIONS COMMISSION
36 F.C.C.2d 630
RELEASE-NUMBER: FCC 72-110
February 3, 1972 Released
Adopted February 2, 1972
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT.
[*630] 1. The Commission has before it a "Petition for Institution of Rule Making Barring or Restricting Importation of Non-local Radio Station Signals by CATV Systems" (RM-1782), filed April 9, 1971, by the Rocky Mountain Broadcasters' Association. Statements in support of this petition were filed by the National Association of Broadcasters and by the National Association of Educational Broadcasters. An opposition was filed by the National Cable Television Association.
2. This petition requests that the Commission adopt rules regulating the carriage of radio signals by cable television systems. No specific rule was proposed. As previously indicated in our August 5, 1971 Letter of Intent to Congress (31 FCC 2d 115, 140 (1971)) we believe this is an area where further inquiry and action by the Commission is needed. It appears that some of the same concerns we have expressed in our regulation of television signal carriage may also be applicable to radio carriage. Thus, petitioners urge that carriage of non-local radio stations, particularly when local stations are not also carried, fragments the market of local stations, potentially impairing their ability to serve the public. The need for action in this area is also suggested by the "Consensus Agreement" that we included as Appendix D to our Cable Television Report and Order (FCC 72-108) adopted this day. That agreement suggests a rule so that:
When a CATV system carries a signal from an AM or FM radio station licensed to a community beyond a 35 mile radius of the system, it must, on request carry the signals of all local AM or FM stations respectively.
3. These considerations have persuaded us to inaugurate a rulemaking in this matter. Additionally, we are this day taking actions that we anticipate will result in significant new cable television system construction that may involve radio signal carriage and we, therefore, believe it appropriate to adopt some interim measures govern [*631] the carriage of radio signals until this proceeding is completed. We believe the best way to proceed is through the certificating process (See Cable Television Report and Order, FCC 72-108, para. 110). Cable systems must disclose which radio signals will be carried in connection with the application for a certificate. (See Form 325 that accompanies the application.) In view of the substantial public interest questions involved and the difficulties inherent in attempting to remove or readjust the carriage of signals to which the public has become accustomed, we shall not, during the pendency of this proceeding, process applications for certificates which propose to bring distant * radio signals: (1) into cable communities having licensed radio stations with populations of less than 50,000 or (2) into any community unless all radio stations of the same type (AM or FM) licensed to the cable community are also carried. * for purposes of the interim procedures, we shall define a distant radio signal as one licensed to a community more than 75 miles from the cable community.
4. During this proceeding, the Commission will be seeking comment on the following issues; the definition of the term "local signal" as applied to radio stations; the possibility of "grandfathering" radio signals presently imported by cable systems; and the question of whether a leapfrog policy is appropriate here as in the case of television signals. In addition, consideration will be given to the possibility of devising importation policies premised either on the size of the market involved, or on the type of signals imported (educational, AM or FM), as presently is done with the carriage of television signals. The rule suggested in the Consensus Agreement should provide an appropriate focus for those commenting, with one addition -- that whenever a local signal is carried, all such signals of the same type must be carried.
5. The Commission invites all interested parties to file written comments on this rule making proceeding on or before March 16, 1972 and reply comments on or before April 6, 1972. In reaching its decision on this matter, the Commission may take into account any other relevant information before it, in addition to the comments invited by this Notice.
6. In accordance with the provisions of Section 1.419 of the Commission's Rules and Regulations, an original and 14 copies of all comments, replies, pleadings, briefs, or other documents filed in this proceeding shall be furnished to the Commission. Responses will be available for public inspection during regular business hours in the Commission's Public Reference Room at its Headquarters in Washington, D.C.
7. Authority for the proposed rule making is contained in Sections 2, 3, 4(i) and (j), 301, 303, 307, 308, and 309.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Commission's action in this matter is consistent with its handling of cable television. Under the guise of an "interim procedure," lasting only until we can issue permanent rules (which the staff admits [*632] will take at least a year), we will not permit cable systems in cities with populations less than 50,000 to carry radio stations that residents of the city can pick up over the air. This policy helps no one. Cable systems are denied access to additional programming, subscribing listeners are deprived of stations they could otherwise hear, local radio stations are still not required to be carried, and the FCC is made to look the fool.
I agree that rulemaking, a general inquiry, into "cable radio" is called for. During the pendency of that proceeding, I would permit systems in cities under 50,000 to carry all radio signals that can be picked up over the air -- regardless of their source -- so long as they also carry all stations licensed to the community of the system.
This whole problem arose because a cable system that provides radio as well as television service in Jackson Hole, Wyoming, is allegedly refusing to carry a local Jackson radio station. The Rocky Mountain Broadcasters Association brought the problem to our attention. My proposal would at least resolve the Jackson Hole conflict without raising more problems than it solves. I do not believe the majority's action has either virtue.