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In the Matter of PETITION FOR RULEMAKING TO REQUIRE BROADCAST LICENSEES

TO MAINTAIN CERTAIN PROGRAM RECORDS

 

Docket No. 19667 RM-1475

 

FEDERAL COMMUNICATIONS COMMISSION

 

43 F.C.C.2d 680

 

RELEASE-NUMBER: FCC 73-1039

 

October 12, 1973 Released

 

 Adopted October 3, 1973

 


JUDGES:

BY THE COMMISSION: COMMISSIONER ROBERT E. LEE ABSENT; COMMISSIONER JOHNSON CONCURRING IN PART AND DISSENTING IN PART AND ISSUING A STATEMENT.


OPINION:

 [*680]  1.  The Commission has before it the various filings in response to our Notice of Proposed Rule Making in this proceeding.  Based on a review of these filings the Commission has reached certain determinations which are discussed in the succeeding paragraphs.

2.  The Notice in question invited comments on a proposal to open the program logs of radio and television stations to public inspections and to lengthen the retention period for the logs from the present two years.  A large number of parties have filed comments on the various aspects of the proceeding.  Broadcasters have written at length about problems that they believe public inspection and a longer retention period could entail and the petitioner National Citizens Committee for Broadcasting, and others supporting the proposal have also written at length about the gains they see flowing from such steps.  Resolution of these conflicting claims involves consideration of a large number of issues.  Some of these issues go beyond the parameters of this proceeding and relate to other major subjects before the Commission.  As a consequence, there is a need to coordinate out action here with that to be taken as part of our consideration of these other on-going matters.  One of these is the effort, now underway, of the task force on re-regulation to revise and improve the regulations pertaining to the operation of broadcast stations, including the removal of unnecessary and outdated requirements.  The subject of radio regulation has been of particular concern in this effort.  To insist upon action on radio and television together in this proceeding is to delay action on both, as there is a clear need to coordinate any step contemplated in regard to radio.  On the other hand, action regarding television need not await such re-regulatory coordination.  Thus, we have decided to defer action on the part of the proceeding dealing with radio and in the discussion which follows, the reference is entirely to television.  Depending on what develops based on our experience in the television area, we will be in a better position to evaluate any possible action in regard to radio, as well as to better coordinate it with current re-regulatory  [*681]  efforts.  Likewise, we intend to defer consideration of a change in the log retention period.  This, too, is an area where the benefit of experience is needed before action is taken.

3.  Another matter pertinent to this proceeding is the renewal proceeding in Docket No. 19153.  On May 4, we released our Interim Report and Order, indicating that a final Report and Order would be issued after review of the new renewal forms by the Office of Management and Budget.  That process has been completed and a final Report and Order has been issued.  As a part of that action, we required television stations to file an annual report based on their programming in a composite week in each year of the license term.  The logs of the stations are used for this purpose, much as they had always been used in the preparation of renewal applications.  The composite week program logs filed with renewal applications have been available to the public.  On essentially the same rationale, we have concluded that the logs for the annual composite weeks should also be made public and this step was taken in the Report and Order in Docket No. 19153.  Consequently, that matter is not at issue here.  What is at issue is whether additional steps should be taken.

4.  Based on our consideration of the submissions in this proceeding we have concluded that television program logs for times other than the composite week should be made public under certain circumstances.  We have some tentative views as to the circumstances under which there should be public inspection and the procedural safeguards which are required to avoid the possibility of abuse and the imposition of unnecessary burdens.  However, these are tentative views.  To help us reach a final resolution of these points, we believe that the holding of oral argument would be useful.  This oral argument is not intended to cover the entire range of issues in the proceeding.  Rather, it is specifically limited to the issue which we will set forth below.  Even on these issues, the pleadings provided a record upon which we could base our action.  However, we think it desirable to hold oral argument because it would allow a precise focusing of attention on what have become the central points to be resolved.

5.  We will first discuss the substantive questions relating to disclosure and then deal with the procedural safeguards.  Under our old renewal policies as well as new procedures, a licensee could supplement the showing which was derived from the composite week if he thought it did not adequately and accurately depict the station's performance.  If this is done, the licensee can choose any period to use for the purpose, but the public has no opportunity to gain access to the logs for any other period on which to base a possible rebuttal.  When a party relies upon material in its possession to support its arguments, fairness suggests that those of a contrary view have access to that material for rebuttal purposes.  When a licensee chooses to supplement its composite week showing, we are inclined toward making all the logs available (under circumstances described below) so that the issues can be properly joined on a fair and equitable basis.

6.  We also need to consider what to do when a licensee has not gone beyond its composite week showing.  We are considering the following approach.  Initially those interested in viewing program logs would apply to the station to do so, indicating the basis for the request.  If a  [*682]  prima facie case has been made -- in other words, a good cause showing -- of the merits of the request we would expect the request to be honored.  If a dispute should arise, regarding the merits of the request the matter then could be brought to the Commission's attention by the filing of a petition, hopefully a process which will not often be necessary.  In addition to its other possible advantages, the net result of following this approach would be to avoid imposing any burden whatever on the broadcaster who receives no requests.  Since we do not now contemplate a lengthening of the retention period, stations not receiving these requests would be in exactly the same practical position as they are now.  For those receiving requests, we are considering the following procedural requirements which should discourage frivolous or nuisance requests and avoid the imposition of unfair burdens:

(a) All requests must be made in advance and shall be subject to the scheduling of a mutually convenient appointment time;

(b) All copying or duplication is to be done at a location chosen by the station, with all necessary costs to be borne by the party wishing to view the logs; and

(c) No logs, except for composite weeks shall be available for inspection until a minimum of 30 days have elapsed from the day of broadcast.

7.  We believe that the appointment approach will avoid the disruption that would attend unannounced and unscheduled visits and yet will respond to the legitimate needs of those wishing to inspect.  Since the costs of duplication can be considerable, it seems only proper to require that it be assumed by the benefiting party.  The 30-day delay is intended to accomplish two things.  It would avoid the disruption that could result from inspection when the logs are still being used for billing or other station purposes, and it would help insure that competitors would not have access to timely information which could be used to gain some competitive advantage.  Since the public groups are presumably concerned with a licensee's ongoing efforts, the resulting delay should cause them little inconvenience.

8.  Parties at oral argument are invited to address any or all of the above points.  However, since the good cause request procedures set forth above have not been previously discussed it would be most helpful if the parties gave this area particular attention in their presentations.

9.  Oral argument is scheduled for November 20, 1973.  Parties wishing to be heard on the above questions should communicate their desire to the Commission in writing no later than October 26, 1973.  These requests (original and four copies) should be addressed to the Commission's Broadcast Bureau, attention: Rules and Standards Division.  Parties should indicate in their request how much time they desire.  Interested parties having parallel views to express are encouraged to join together in a single appearance and thus avoid unnecessary duplication in the arguments.  Because time is limited it may not be possible to accommodate all parties in the amount of time requested but recognition will be given to the time requirements of parties participating jointly.  After receipt of all the requests, the Commission will issue an Order setting forth who will appear on whose behalf, and when and for what period they will appear.  After Oral Argument, the Commission expects to take these matters under advisement and to issue a First Report and Order as promptly as circumstances permit.

 [*683]  10.  Accordingly, IT IS ORDERED, That Oral Arguments is scheduled as descried above.

 

FEDERAL COMMUNICATIONS COMMISSION, VINCENT J. MULLINS, Acting Secretary


 

CONCURBY: JOHNSON (IN PART)

 

DISSENTBY: JOHNSON (IN PART)

 

DISSENT:

STATEMENT OF COMMISSIONER NICHOLAS JOHNSON CONCURRING IN PART AND DISSENTING IN PART

I welcome the action we have taken today and believe it ultimately will prove beneficial to the Commission, to broadcasters and to the public.  Since we have scheduled oral argument on our proposals, and since I do have some reservations about our opinion, I think it might be helpful to set forth my thoughts at this time.

In my view, the primary purpose for making logs available is to provide the public with the detailed, factual information needed to make objective evaluations of a station's past program performance.  Without the logs, the public has only two ways of making such an analysis.  It can either rely upon information garnered from a monitoring study conducted by some local, volunteer, community group, or it can attempt to analyze the licensee's own summary evaluation of its program performance that is contained in the renewal application.  For a variety of reasons, neither of these alternatives provides adequate factual detail for formulating comprehensive, objective evaluations of program performance.  Accordingly, public access to station logs will be in everyone's interest.

For the broadcaster who has done his job and lived up to Commission rules and regulations, program logs constitute the best evidence of performance.  Thus, public evaluation of programming based on the licensee's own records will reduce the incidents of allegations based on speculation, generalization and subjectivity.  Moreover, if the licensee disagrees with the public analysis of his logs, he will have specific facts and figures, not mere rhetoric, to which to respond and oppose.

For the public, log availability is simply a matter of fairness.  It provides access to information upon which licensees base supplements to their composite week showing.  Access to logs will enable the public to frame more substantive complaints based upon factual information.  Unlike many businesses, there is, by definition, nothing secret about broadcasting.  The logs are simply a permanent record of what the broadcaster has sent out over the airwaves in the hopes it will be seen or heard by the largest number of people possible.  The logs are created and retained by the broadcaster.  To forbid the public to see this summary record of what was, in the first instance, a public act is most difficult, if not impossible, to justify.

The staff of our Broadcast Bureau and the Commission will also benefit.  Since issues and arguments based upon information culled from the logs will be more sharply defined, more objectively presented, and more factually complete, the staff will have better records from which to evaluate the merits of pleadings.  The Commissioners, in turn, will have more objective staff analyses upon which to base their final decisions.

 [*684]  Although it appears that all parties stand to gain, some broadcasters have expressed concern that the sheer volume of paper involved could make requests for logs burdensome to them in a number of ways.  We must be fair about this to the broadcasters as well as the public.  They cannot be confronted with hoards of people wandering through their files at all hours of the day and night.  In framing our final rules, I believe we should establish reasonable time and space guidelines which both minimize potential burdens on licensees as well as accommodate the interests of the public.  We have successfully adopted adequate guidelines for the availability of stations' public files (47 C.F.R.   1.526); In Re Availability of Locally Maintained Records for Inspection of Members of the Public, 28 F.C.C. 2d 71 (1971). I see no reason why we cannot do the same for all program logs.  n1

 

n1 By our recent action in Docket #19153 we resolved the question of time and space guidelines for the annual composite week logs by including them in the public file.  Accordingly, they will be available to the public during normal business hours.  While I believe that the volume of log materials being considered might raise some additional problems that the Commission should consider in its final decision on the matter, I am confident that we can devise guidelines that will serve the interests of both licensees and the public.

I recognize that no set of rules will erase all burdens for all parties.  However, it does not follow that because some burdens may be imposed, logs should not be made available.  If, as I have discussed above, the purpose for providing access is to promote objective evaluation of station program performance, and if this will serve the interests of the Commission, broadcasters and the public, then any potential burdens are vastly outweighed by considerations of administrative efficiency, fairness, and the public interest.

Accordingly, I do not think the Commission should concern itself with developing standards for determining what constitutes a "good cause request" for program logs.  So long as time and space guidelines are developed which protect broadcasters and accommodate the public, all logs should be made available unless the licensee can prove unreasonable or unique burdens.

In a similar vein, I see no valid reason for delaying the applicability of our new rules to radio.  Surely, if the public has an interest in objective evaluation of television station program performance, it has at least as much interest in objective analysis of radio performance.  Radio is enjoying a resurgence that makes it, in many respects, even more important than television.  It seems to me an unnecessary slap in the face to our radio broadcasters to suggest they are not important enough in the eyes of the FCC and the public to warrant their participation in this new procedure.  Moreover, if the availability of TV logs would benefit everyone, it seems axiomatic to me that public access to radio logs would do the same.  Thus, I think we should address ourselves to the question of making radio logs available now under the same or, if necessary, different guidelines.  If, at some future date, the re-regulation task force determines that there are valid reasons warranting a different result, we can change the rules at that time.  In the interim, however, I think consistency, fairness and administrative efficiency dictate that our new rules should be applicable to radio.

For the above reasons, I concur in part and dissent in part to the Commission's order, with the hope that oral argument will shed additional light on these issues.


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