Communications-Related Headlines for January 4, 2000

Headlines Extra:
Broadcasting 1/4/2000

The FCC Asks for Public Comment on the Public Interest Obligations of Digital Television Broadcasters

"Television has been the most important medium of the 20th century," said Federal Communications Commission Chairman William Kennard, "and has transformed the way we live and see the world. It's part of our social fabric. As we move into the 21st century television is undergoing a technological transformation. We must make sure that as television changes, broadcasters continue to serve the public in a variety of ways."

On December 15, the Federal Communications Commission (FCC) opened an inquiry into the public interest obligations of digital television broadcasters. The adoption of a notice of inquiry (NOI) allows the public the opportunity to comment on the public interest performance of current television stations and the public interest potential of digital television technology.

In adopting a Notice of Inquiry (NOI), the (FCC) said it was creating a forum for public debate on how broadcasters can best serve the public interest during and after this transition to digital TV. [For more on the transition, see Picture This: Digital TV and the Future of Television ]. The FCC said it is not proposing new rules or policies in this NOI, but rather is seeking ideas and public comment to determine what, if any, further steps should be taken in this area. Interested parties must file comments on or before March 27, 2000, and reply comments on or before April 25, 2000.

The FCC asked for comment on four general categories of issues:

Digital: In the area of challenges unique to the digital era, the FCC asked for comment on how broadcasters' existing public interest obligations should be applied in a digital television environment. It cited the existing obligation to air children's informational and educational programming, and asked for comment on how to apply this guideline when broadcasters offer more than one programming stream through DTV multiplexing. It asked for comment on what, if any, public interest obligations should apply to the use of a DTV broadcaster's channel to provide ancillary and supplementary services, such as datacasting.

Disaster: In the area of broadcasters responding to their communities, the FCC asked for comment on the opportunity created by digital technology to allow more pinpointing of emergency warnings, such as targeting specific households or neighborhoods at risk, and thus to provide improved disaster warnings. The NOI also asked for comment on ideas for requiring enhanced disclosures of stations' public interest programming and activities, and on suggestions that broadcasters use Internet postings and electronic mail in making available their public files.

Disability & Diversity: In the area of enhancing access to the media, the FCC asked for comment on how broadcasters might make their programming more accessible to persons with disabilities, such as enabling viewers to change the size of captions or to make video description more widely available. The FCC also asked for comment and suggestions on innovative ways unique to DTV to encourage diversity in the digital era.

Discourse: In the area of enhancing political discourse, the FCC asked for comment on ways that candidate access to television could be improved, and on whether the FCC can take steps to promote voluntary efforts by broadcasters. The NOI also asked for comment on the Advisory Committee recommendations that broadcasters voluntarily provide five minutes of time each night for thirty days before an election for candidate-centered discourse. It also asked for comment on proposals by individual members of the Advisory Committee and others to require broadcasters to provide designated amounts of airtime for national and local candidates, and to prohibit broadcasters from adopting blanket bans on the sale of airtime to state and local candidates.

The FCC said it welcomed other suggestions and ideas about broadcaster public interest responsibilities not contained in the NOI and requested that parties articulate legal theories for their proposals.

The NOI follows up on the FCC's April 1997 digital television (DTV) order in which it indicated it would issue a Notice at a later date on the public interest obligations of DTV broadcasters. The NOI also seeks comment on some recommendations of the President's Advisory Committee on the Public Interest Obligations of Digital Broadcasters and on some ideas contained in petitions filed by outside parties, including People for Better TV (PBTV), asking for the FCC to commence a proceeding on this subject.

"Our efforts, particularly the letters sent and the meetings with Commissioners, have had an impact at the FCC," said PBTV National Coordinator Mark Lloyd, "however a Notice of Inquiry is insufficient. An inquiry will not necessarily result in guidelines for digital broadcasters. And with over 100 licenses already given out, the public deserves to know what it is getting in exchange for the $70 billion giveaway of public property. We will continue to push for a proceeding to set clear guidelines."

Other public interest advocates had similar mixed reactions to the FCC action. "This is a good beginning in requiring broadcasters to give the public the service it deserves under the law," said Andrew Jay Schwartzman, President and CEO of the Media Access Project, a public interest law firm. For over sixty years, broadcasters have received free use of the airwaves in exchange for providing services to the public. "The Commission must have the political will to carry forward in the face of stiff resistance," warned Schwartzman. "This NOI represents a promise to the American people, a promise we expect the Commission will fulfill in the months ahead."

Center for Media Education Executive Director Jeffery Chester said CME would call for "new policies designed to benefit the community, especially children." Children's needs must be safeguarded, adds Kathryn Montgomery, Ph.D., president of CME. "We'll be taking a hard look at digital broadcasting to make sure that children are protected from manipulative and exploitative advertising in the digital age. We have a civic responsibility to harness the power of this new interactive medium for the benefit of children."

Commissioner Gloria Tristani supported the NOI saying, "This proceeding is long overdue. The public interest standard -- the bedrock obligation of those who broadcast over the public airwaves -- has fallen into an unfortunate state of disrepair over the years....The difficulty, of course, is in defining the public interest. On its face, the standard is broad and requires the Commission to exercise a great deal of discretion." Commissioner Tristani believes that the public interest requirements should be specific as "vagueness gives too much power to the Commission to impose wide-ranging requirements on licensees."

"[T]he public interest standard should be a "safety net" to protect the public against those broadcasters who might be tempted to avoid their obligations in the absence of a rule." Commissioner Tristani said, "Children spend far more time with television than any other medium, and the vast majority of that time is unsupervised. There is no doubt that television exerts a great influence on their development and well-being. We must do what we can to protect our children from material that may harm them and to ensure that they have access to programming that meets their particular needs." (See www.fcc.gov/Speeches/Tristani/Statements/stgt935.html)

Commissioner Michael K. Powell concurred with the NOI, but said he had concerns and reservations. He believes we are in the early stages of digital transmission and we do not yet know what will become of public interest. "While I applaud the uncustomary effort to get far in front of the curve, it seems to me premature to attempt to fix public interest obligations to a service that has yet to blossom." He continued, "I question why the mere use of a digital medium rather than an analog one justifies new public interest obligations, particularly ones of the breadth and scope envisioned in this NOI."

Another problem Powell saw was First Amendment rights being challenged. "It is ironic to me that as we enter the digital age of abundance and tout its myriad opportunities for more information through more outlets, we simultaneously propose greater public interest obligations that infringe upon speech, justified on the crumbling foundation of scarcity."

Powell's final comment addressed the issue of political discourse: "I have made no secret of my views concerning the appropriateness of the Commission initiating an inquiry into free air time for political candidates, without specific direction from Congress -- I feel strongly that a federal agency of un-elected officials should not on its own initiative tread in an area that may fundamentally affect the electoral process. Such modification or reform should come from the people through their duly elected representatives in Congress. It is even more troubling that an agency would pursue such questions, when the issue has been raised and debated by the Congress, but has to date been rejected, as is the case with this bevy of issues." [SOURCE: Federal Communications Commission]

Commissioner Harold Furchtgott-Roth concurred with part of the FCC's Notice of Inquiry and dissented in part saying, "broadcasters fund[ing] solutions to such diverse problems as minority access to capital and the quality of our political discourse. I believe even suggesting such broad policies in this deregulatory and competitive age is pure folly." Commissioner Furchtgott-Roth continued, "The Commission's rules should be moving towards deregulation, not further burdening the emergence of one nascent mass media competitor: digital television (DTV)." He explained that he is uncomfortable with the FCC, an independent agency, taking "guidance" and "focus" from the executive branch through PIAC and the Vice President.

Commissioner Furchtgott-Roth also questioned the timing of the NOI which comes only weeks after the arrival of a letter requesting such action by the Vice President, casting unfortunate doubt on the FCC's independence as an agency. Commissioner Furchtgott-Roth said he was curious as to why this "has become the vehicle for so many big government causes designed to cure virtually every social ill through the mandated largesse of broadcasters." He believes Congress must debate and pass any policy with respect to free air time for political candidates as it is highly political and "it is not at all clear that free airtime would advance the majority's apparent goals of 'promoting democracy' and 'better educating the voting public.'" He concluded by saying, "I also believe that it is simply better policy to leave broadcasters with discretion to define and implement their public interest programming, especially local programming. Broadcasters have every reason to serve their local communities and, if they do not meet that challenge, they will go out of business." (See www.fcc.gov/Speeches/Furchtgott_Roth/Statements/sthfr962.html)

The NOI (FCC 99390/Mass Media Docket No. 99-360) is now available online (www.fcc.gov/Bureaus/Mass_Media/Notices/1999/fcc99390.txt or www.fcc.gov/Bureaus/Mass_Media/Notices/1999/fcc99390.doc for a formatted version).