In the Matter of ASCERTAINMENT OF COMMUNITY PROBLEMS BY BROADCAST APPLICANTS
Part 1, Sections IV-A and IV-B, of Broadcast Application Forms, and Primer Thereon
Docket No. 19715
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 379
RELEASE-NUMBER: FCC 73-330
March 23, 1973 Released
Adopted March 22, 1973
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE CONCURRING AND ISSUING A STATEMENT; COMMISSIONER HOOKS ABSENT.
[*379] 1. The Commission has under consideration its requirements and policies with respect to ascertaining and meeting community problems by broadcast applicants. n1
n1 The word "problems" is used as a short form of the phrase "problems, needs and interests." (A. 3. Primer on Ascertainment)
2. Our Task Force study concerning re-regulation of broadcasting, under the supervision of Commissioner Wiley, indicates that the ascertainment process should be examined for its overall effectiveness in the public interest.
3. Pursuant to the Commission's Program Policy Statement of 1960, "The broadcaster is obligated to make a positive, diligent and continuing effort, in good faith, to determine the tastes, needs and desires of the public in his community and to provide programming to meet those needs and interests." (FCC 60-970; 25 F.R. 7291).
4. The Commission's present standards for the ascertainment process are set forth in a question-and-answer type "Primer on Ascertainment of Community Problems by Broadcast Applicants", adopted February 18, 1971 ( Report and Order, Docket No. 18774, 27 F.C.C. 2d 650). The Commission stated that, "... the amended Primer, in our view, will aid broadcasters in being more responsive to the problems of their communities, add more certainty to their efforts in meeting Commission standards, make available to other interested parties standards by which they can judge applications for stations licensed to their community, and aid our staff in applying standards uniformly." The Commission indicated, however, that with respect to renewal applicants the Primer was to serve "as an interim measure until other standards are adopted." ( Id., at 655.)
[*380] 5. Our experience indicates that the principle of ascertaining and meeting community problems is one important requisite for service in the public interest. We are concerned here, as part of our continuing study on re-regulation of broadcasting, with whether present ascertainment requirements serve the public interest in the most effective way possible and, if not, what improvements could be made to accomplish that objective. Over 600 comments have been filed in our re-regulation study. Many contend that various specific requirements of the ascertainment process are unnecessary, impractical, unduly burdensome and, thus, should be modified or deleted.
6. Comments in our re-regulation study also assert that radio is a different medium from television and should be treated differently in the matter of ascertainment. Accordingly, Part I of the Inquiry is designed to explore these alleged differences relative to the role of each of the media in discharging its statutory responsibility for serving the public interest, convenience, and necessity. An inherent consideration, in this regard, is any possible conflict with mandates of the Communications Act of 1934, as amended. Additionally, the comments we have received suggest that certain variables (e.g., market size, numbers of stations, number of employees, specialized formats, etc.) also should be considered in determining ascertainment procedures.
7. While the issues involved in Part I are very broad and relate to many aspects of our regulatory policy (some of which may be the subject of subsequent Commission action), the focus of this Inquiry is particularly related to ascertaining and meeting community problems. Thus, Part II deals specifically with ascertainment processes for both radio and television in light of any difference between the two media and operational variables involved (as elicited in Part I).
8. This Notice of Inquiry elicits comments (on issues set forth below) applicable to both radio and television. Due consideration will be given, of course, to any comments received. However, in all probability, our initial concern will be with radio, since it is the primary focus of our re-regulation study. Additionally, radio stations (of which there are approximately ten times as many as television stations) have wider variances as to size of market, operating power, hours of operation, type of service (AM, FM) and programming format to serve the public. These variances and the resultant diverse nature of radio make its ascertainment considerations of more immediate concern.
9. Comments are invited on the following questions:
(a) What is the role (or function) of radio in discharging its statutory responsibility for serving the public interest, convenience and necessity; and is that role affected by size of market ("small market", n2 Top 50, Top 100, etc.), number of stations in a market, number of station employees, specialized programming or other variables?
n2 We specifically invite comments on how "small market" should be defined both as to radio and television.
(b) What is the role (or function) of television in discharging its statutory responsibility for serving the public interest, convenience and necessity; and is that role affected by any variables such as those indicated in (a) above?
[*381] PART II
(a) Do the roles (or functions) of radio and television in discharging their responsibility for serving the public interest, convenience and necessity differ to the extent that requirements for ascertaining and meeting community problems should be different for each service? If so, would such different requirements be inconsistent with any part of the Communications Act of 1934, as amended? Similarly, should any of the variables set forth in Part I dictate any different requirements and, if so, would such different requirements be inconsistent with the Act?
(b) In answering the general questions in (a) of this Part, and in considering the entire subject of ascertaining and meeting community problems, the following specific questions should be addressed:
(1) Should an ascertainment of community problems be made six months before filing an application, as now required, at some different time, or on a continuing basis? What should be considered a "continuing" basis? How should it be accomplished? How should it be documented?
(2) Are consultations with community leaders and members of the public, in the manner provided by the Primer, helpful to the station and to the public which the station is licensed to serve?
(3) Should consultations with community leaders be conducted by principals and management-level employees only, or by other employees as well? If so, which ones? By non-employees?
(4) Should a professional research firm be permitted to make the ascertainment of community leaders for a station? For all stations in the community collectively? Would use of a research firm be consistent with the Commission's traditional view that this is "a duty personal to the licensee and may not be avoided by delegation of the responsibility to others". (Commission's Program Policy Statement of 1960, supra.)
(5) Is it advisable to permit:
(i) Group consultations (in which all licensees in the community meet with community leaders, community groups and members of the public)? If so, under what circumstances, and why? n3
n3 It is the Commission's current policy to permit joint consultation under the following conditions: Each individual community leader must be given an opportunity to freely present his opinion of community problems; each broadcaster present must have an opportunity to question each leader; and the joint meetings should include community leaders who are the same or equal plane of interest and responsibility. See June 30, 1971, letter to Southern California Broadcasters Association (FCC 71-699); and August 4, 1971, letter to Metro Portland Broadcast Committee (FCC 71-825).
(ii) Ascertainment of community problems by means of broadcast programming (including announcements) in which community leaders, members of the public, etc. participate (such as panel and interview programs)?
(iii) Ascertainment of community problems by Town Hall types of meetings? Should this procedure be used to consult with all community leaders? The public? Or both? Would such meetings be representative of the public the station is licensed to serve?
(6) Should consultation with community leaders by telephone continue to be permitted? Why?
(7) In the broadcast of matter designed to meet community needs, should credit be given for spot announcements as well as for programs? May spot announcements be used exclusively?
(8) Should a station using a specialized programming format be permitted to ascertain and meet only the problems of its specialized audience? Is it possible to define accurately that audience out of the total general public? If so, how?
(9) Should different requirements for ascertaining and meeting community problems be applied according to different types of applications, i.e., for new stations, major changes in facilities, assignments and transfers and renewals? Why?
(10) Should requirements for ascertaining and meeting community problems be incorporated in the Commission's rules or left, as now, in policy statements and forms? Why?
[*382] 10. Comments in both Parts of this proceeding are not limited to the foregoing questions, but may be addressed to any facet of the processes for ascertaining and meeting community needs. It is hoped that comments, either formal or informal, will be submitted by interested parties from all segments of the public and broadcasting industry.
11. The questions above are designed to elicit information which would be helpful in this proceeding. The Commission takes no position on these matters at this time.
12. This action is taken pursuant to Section 403 of the Communications Act of 1934, as amended. Interested parties responding to this Notice of Inquiry may file comments on or before June 1, 1973. Reply comments may be filed on or before June 22, 1973. An original and eleven copies of each formal response must be filed in accordance with the provisions of Sections 1.49 and 1.51 of the Commission's rules. However, in an effort to obtain the widest possible response in this proceeding from licensees and members of the public, informal comments (without extra copies) will be accepted. Copies of all pleadings filed in this matter will be available for public inspection during regular business hours in the Commission's Public Reference Room at its headquarters in Washington, D.C.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING STATEMENT OF COMMISSIONER H. REX LEE
I concur in the adoption of this inquiry into the Commission's current ascertainment requirements for commercial broadcast applicants. As a general proposition, I favor an administrative agency's review of the effectiveness and impact of its past regulation. Two years have now passed since the Primer was issued. In that time it has become evident that some modifications and changes may be needed to help improve and possibly simplify the ascertainment process for both the licensees and the public. Hopefully, this inquiry will accomplish these goals.
In the Primer we stressed that ascertainment standards would be applied to renewal applicants only on an interim basis until the Commission could review comments filed in Docket Nos. 19153 and 19154, wherein we are examining our renewal processes in the commercial broadcast field. Action on these dockets is long overdue. Comments have been filed, and an oral argument held with respect to the latter docket. The uncertainty which these proposed rules have created in the broadcast industry and public should have been disposed of one way or another before we initiated this broad inquiry.
There are several pending petitions for rulemaking which seek to impose formal ascertainment requirements on noncommercial educational broadcasters and to modify their renewal process. These subject areas could have been included in the commercial ascertainment inquiry. However, this would not have been administratively wise. It should be noted the Primer was specifically intended to provide guidelines for commercial broadcast applicants only and the Commission previously indicated that noncommercial educational broadcasters should be treated differently, given their unique character and the very specialized nature of their programming. See Primer on Ascertainment of Community Problems by Broadcast Applicants, 27 FCC 2d 650, 651 (1971). As a result, it is more appropriate to address the substance of the pending rulemaking petitions apart from the ascertainment inquiry concerning commercial broadcast applicants although the latter could have a substantial impact on the Commission's consideration of the former.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Communications Act makes clear that broadcasters have an obligation to serve "the public interest."
The Act, and its legislative history, make clear that "the public interest" includes programming.
The whole premise underlying the allocation of 95% of the nation's most valuable frequency space to 8,000 radio and television stations (rather than defense, police, and business uses) is that these stations are providing local programming designed to serve local needs.
There are a number of ways the Commission can insure compliance with the Act. Some involve Commission action -- such as establishing minimum performance criteria necessary to renewal. Others substitute the involvement of local citizens for regulation from Washington. I prefer the second, but can accept either approach. What I cannot abide are the broadcasters' arguments that they should be responsible to neither the FCC nor their local communities.
While examining the "role" of radio and television, and the possibility of modifying (presumably reducing) the local ascertainment process, the inquiry does not even contemplate the numerous alternatives to ascertainment should it be curtailed.
Sensible substitution of one public interest process for another I am prepared to consider. If there are ways to relieve broadcasters of unproductive burdens we should do so. Whatever may be the protests to the contrary, however, I fear that this inquiry -- once concluded -- may well turn out to be but one more example of the erosion of such [*383] feeble efforts as still remain to provide some public interest criteria for broadcasting with nothing to substitute in its place.
It will be issued in time for the cheers it will undoubtedly produce at next week's annual convention of the National Association of Broadcasters. But that is scarcely justification for the haste purpose or content of this document.